Is a subsidiary in your future? Companies can benefit from important tax advantages and liability protections.
* CERTAIN DEVELOPMENTS IN A COMPANY'S LIFE CYCLE can trigger the need for a subsidiary, such as the launch of a new venture with different risk characteristics than the company's existing line of business or the opening of operations in a new state or foreign country. Other times, companies need to form subsidiaries to facilitate the potential sale of part of the company.
* FROM AN ACCOUNTING PERSPECTIVE, creating a subsidiary makes sense because it allows companies to enjoy substantial tax benefits and creditor protections. The costs involved can be as little as a few thousand dollars for smaller companies, and when costs are higher, they are almost always nominal compared with potential rewards.
* THE PRINCIPAL TAX BENEFIT associated with adopting a subsidiary structure is the ability, on federal income tax returns, to offset profits in one part of the business with losses in another. Forming a subsidiary also can provide tax benefits at the state level.
* WHILE CREATING A SUBSIDIARY will clearly help to achieve corporate aims, companies and their advisers must structure the deal so it does not run afoul of a·foul of
1. In or into collision, entanglement, or conflict with.
2. Up against; in trouble with: ran afoul of the law. federal tax, employment and benefit regulations. Companies must be especially mindful of the rules governing qualified plans, such as pensions or profit-sharing vehicles subject to federal laws.
* CPAs WHO ADVISE on when and how to create a subsidiary should have strong grounding in tax regulations, particularly those relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc intercompany transfers of assets or liabilities.
It happens every day: One company decides to buy another or it enters into a new line of business and comes face-to-face with the question of whether to structure the new venture as a separate legal entity--a subsidiary--or simply fold it into the company's existing operations. For CPAs whose employers or clients may be growing beyond a single-entity structure, this article explains when it makes sense to take the subsidiary route.
Certain routine developments can trigger the need for a subsidiary. Often, says CPA (Computer Press Association, Landing, NJ) An earlier membership organization founded in 1983 that promoted excellence in computer journalism. Its annual awards honored outstanding examples in print, broadcast and electronic media. The CPA disbanded in 2000. and tax attorney Mike Farra at Miami-based CPA firm Morrison, Brown, Argiz & Co., it will be the launch of a new venture that has different risk characteristics than the company's existing line of business or the opening of operations in a new state or foreign country. Other times, companies need to form subsidiaries to facilitate the potential sale of part of the company.
From an accounting perspective, creating a subsidiary generally makes sense under any of these conditions because it allows companies to enjoy substantial tax benefits and creditor protections. There are costs involved--hiring attorneys to draft and file the necessary legal documents, for example, and paying CPAs to handle marginally more complex tax returns. But those costs may be measured in as little as thousands of dollars for smaller companies, and even when costs are higher, they almost always are nominal compared with potential rewards from legal protections and tax benefits.
The principal tax benefit associated with adopting a subsidiary structure is the ability of a company, on federal income tax returns, to offset profits in one part of the business with losses in another. Suppose, as an example, John Doe John Doe
formerly, any plaintiff; now just anybody. [Am. Pop. Usage: Brewer Dictionary, 329]
See : Everyman owns J.D. Frames Corp., which makes specialty truck frames. Doe decides to buy a struggling manufacturer of automobile wheels, Wild Wheels The Hardy Boys investigate a biker gang, including a mysterious girl. Inc., which he believes he can turn around. In the acquisition year, the frame company generates a profit of $10 million, while the wheel company posts a $5 million loss. If Doe operated those businesses as two completely separate corporations filing separate tax returns, the wheel company would owe no federal income tax but the frame company would owe tax on its $10 million profit.
But what if Doe decided to form a holding company--called Doe Industries Inc.--and structured J.D. Frames and Wild Wheels as its two wholly owned subsidiaries Wholly Owned Subsidiary
A subsidiary whose parent company owns 100% of its common stock.
In other words, the parent company owns the company outright and there are no minority owners. ? For federal tax reporting purposes, U.S. companies can file a consolidated return for themselves and all subsidiaries in which they own at least an 80% stake, with certain exclusions for foreign subsidiaries. In this case, filing a consolidated return permits Doe Industries to offset the $10 million profit by J.D. Frames with the $5 million loss posted by Wild Wheels. The net result? Doe's corporate empire would owe federal income taxes on just $5 million, not $10 million. At a corporate tax rate of 35%, that equals a savings of $1.75 million.
To be sure, Doe could simply operate Wild Wheels as an unincorporated Adj. 1. unincorporated - not organized and maintained as a legal corporation
unorganised, unorganized - not having or belonging to a structured whole; "unorganized territories lack a formal government" division of Doe Industries, in which case any losses by one operation would automatically offset profits in the other--without the complexities of filing a consolidated tax return Consolidated tax return
A tax return combining the reports of affiliated companies, that are at least 80% owned by a parent company. . However, he would lose some of the legal protections inherent in the subsidiary structure, such as the ability to insulate in·su·late
tr.v. in·su·lat·ed, in·su·lat·ing, in·su·lates
1. To cause to be in a detached or isolated position. See Synonyms at isolate.
2. Doe Industries from the liabilities of Wild Wheels. If he wished to retain those protections and still avoid the consolidated return, Doe could structure Wild Wheels as a subsidiary but for tax reporting purposes consider it a disregarded entity under IRC (Internet Relay Chat) Computer conferencing on the Internet. There are hundreds of IRC channels on numerous subjects that are hosted on IRC servers around the world. After joining a channel, your messages are broadcast to everyone listening to that channel. section 7701. This would allow Doe to treat the subsidiary as a division of the parent on Doe Industries' income tax return.
STILL MORE TAX RELIEF
Forming a subsidiary business structure can also provide tax benefits at the state and international levels. Janet Moran, a tax attorney and partner in the technology, media and telecommunications group at the New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of office of Deloitte & Touche LLP LLP - Lower Layer Protocol , explains that many states tax businesses on all of their income, regardless of where it was generated. But some, such as Pennsylvania and Michigan, allow subsidiaries to file returns that tax only the profits generated within the state's borders, not those generated by operations in other locations. The same is also true in some states with regard to the collection and filing of sales and use taxes Sales and use tax refers to:
Companies that operate internationally can also set up foreign operations as separate subsidiaries. Typically, the profits of those subsidiaries will then be taxed in the country where the subsidiary is incorporated and will not be subject to U.S. income tax.
In addition to the tax benefits of forming a subsidiary, many companies crave the legal protections from potential plaintiffs and creditors it can provide. Lee Reicher, CPA, attorney and managing partner of the Los Angeles Los Angeles (lôs ăn`jələs, lŏs, ăn`jəlēz'), city (1990 pop. 3,485,398), seat of Los Angeles co., S Calif.; inc. 1850. law firm Reish Luftman McDaniel & Reicher, says that liabilities and creditor claims of a subsidiary are "trapped" in that subsidiary and can't be passed on to the parent company. As a result, if the subsidiary runs into financial trouble, the parent company's assets and its credit rating are protected.
"Assume you had a construction company that primarily built buildings but on occasion had to do demolition with dynamite dynamite, explosive made from nitroglycerin and an inert, porous filler such as wood pulp, sawdust, kieselguhr, or some other absorbent material. The proportions vary in different kinds of dynamite; often ammonium nitrate or sodium nitrate is added. , which is very dangerous work," Reicher says. "You might set up a subsidiary whose only purpose was to do the dynamite work." As a consequence, he says, even an accident that generated huge claims against the subsidiary, perhaps even threatening its viability, would not threaten the continuity of the parent construction company. But a business doesn't have to be involved in a risky operation to justify the creation of a new subsidiary. "Any time you're starting a new venture, there's always risk of loss," explains Farra. "You want to protect the profitable part of the business from the losses of the new business you are starting, and by putting the new business into a separate subsidiary, you can do that."
Consider the case of a West Coast media company--one of Reicher's clients--which formed a subsidiary a few years ago when it decided to enter a new line of business. The venture did not go well, and some creditors were forced to sue for payment of their bills, which were ultimately settled for less than full value. However, the media company itself was shielded from the creditor's reach by virtue of the subsidiary arrangement. "It was only because we kept it (the new operation) separate that we confined the contagion Contagion
The likelihood of significant economic changes in one country spreading to other countries. This can refer to either economic booms or economic crises.
An infamous example is the "Asian Contagion" that occurred in 1997 and started in Thailand. to the unit and didn't wind up infecting the rest of the company," says the owner, who requested anonymity.
SATISFY OTHER OBJECTIVES
A company can create a subsidiary to fulfill other aims (see "Is It Time to Establish a Subsidiary?" page 76). In the case of the West Coast media company, for example, its goal was not merely to shield itself from possible financial fallout from its new venture; it also wanted to tie the performance-based pay of the new venture's manager to the performance of that venture alone, not the company as a whole, and retain the flexibility to easily sell the subsidiary at a later date if that became an attractive option. The company was able to satisfy both these objectives by setting up the new venture as a separate legal entity with its own set of books.
Other reasons to form a subsidiary include facilitating the implementation of different nonqualified benefit plans for individual business operations Business operations are those activities involved in the running of a business for the purpose of producing value for the stakeholders. Compare business processes. The outcome of business operations is the harvesting of value from assets and their managers and creating joint ventures with other companies with each owning a portion of the new operation. "I even had a company--and this is probably not so uncommon--that just wanted to give somebody a new title," Moran says. "Management said, `We've got to make him president of something,' so they created a new subsidiary." She also once helped a company create a subsidiary solely to house intangible assets--copyrighted material that the company licensed to customers--at the request of the company's bank. The bank wanted those assets isolated in a separate legal entity where they would be protected and unencumbered Unencumbered
Property that is not subject to any creditor claims or liens.
For example, if a house is owned free and clear (meaning the owner owes no mortgage to anyone), it is unencumbered. by other potential liabilities, Moran says.
Sometimes, companies will want to form subsidiaries to take advantage of tax and regulatory benefits unique to their industry. In the life insurance industry, for example, mutual-owned life insurance companies often set up a mutual holding company and then put their operating units operating unit
A type of operating company that engages in transactions with outsiders and that is owned by another business. For example, in 1995 the stockholders of Capital Cities/ABC approved a $19 billion merger with the Walt Disney Company, whereupon into subsidiaries that are structured as stock life insurance companies, says Peggy Scott, CPA, CFO See Chief Financial Officer. of Pan-American Life Insurance Co. in New Orleans New Orleans (ôr`lēənz –lənz, ôrlēnz`), city (2006 pop. 187,525), coextensive with Orleans parish, SE La., between the Mississippi River and Lake Pontchartrain, 107 mi (172 km) by water from the river mouth; founded . By doing so, the insurance companies avoid the negative impact of IRC section 809(a), which reduces, by a complex formula, the amount of the tax deduction Tax deduction
An expense that a taxpayer is allowed to deduct from taxable income.
See deduction. allowable under IRC section 808 for policyholder dividends paid by mutual companies. Using the subsidiary structure also minimizes the complexity of dealing with insurance regulations that vary from state to state, Scott says.
AND FOR THE WRONG REASONS
Given the benefits associated with forming subsidiaries, it's not surprising that virtually all sizable companies use them. It's also not surprising that companies sometimes misuse them.
"The classic case that almost everybody reads in law school is about New York taxi cabs," says Reicher. "A cab company put every one of its taxis in its own separate corporation on the theory that if one cab was in an accident, there would be nothing in that corporation for a plaintiff to go after except an old beat-up taxi cab." When tested in court this application of subsidiary law didn't hold up. Instead, says Reicher, the plaintiff's attorneys plaintiff's attorney n. the attorney who represents a plaintiff (the suing party) in a lawsuit. In lawyer parlance a "plaintiff's attorney" refers to a lawyer who regularly represents persons who are suing for damages, while a lawyer who is regularly chosen by an successfully argued that the individual cabs were not individual companies, but merely extensions of a parent company in which all dispatching and bookkeeping bookkeeping, maintenance of systematic and convenient records of money transactions in order to show the condition of a business enterprise. The essential purpose of bookkeeping is to reveal the amounts and sources of the losses and profits for any given period. operations were conducted on a centralized cen·tral·ize
v. cen·tral·ized, cen·tral·iz·ing, cen·tral·iz·es
1. To draw into or toward a center; consolidate.
Enron Corp. came under fire for its aggressive use of subsidiaries in what now appears to have been an attempt to avoid U.S. taxes and hide high-stakes deals from investor scrutiny. According to according to
1. As stated or indicated by; on the authority of: according to historians.
2. In keeping with: according to instructions.
3. its 2000 annual report, Enron operated a network of 2,000 corporate subsidiaries in 23 states and 62 countries, including offshore tax havens Tax Haven
A country that offers individuals and businesses little or no tax liability.
There are several countries in the Caribbean that are considered tax havens. such as the Cayman Islands Cayman Islands (kā`mən), British dependency (2005 est. pop. 44,300), 100 sq mi (259 sq km), comprising three islands in the West Indies. . While there is nothing illegal per se about such subsidiaries, Enron ran into accounting trouble with several special purpose entities it created to keep debt off its balance sheet. Special purpose entities are any type of corporate entity, such as a limited liability corporation or limited partnership, created for a specific transaction or business that is usually unrelated to a company's main business. In Enron's case, it created off-balance-sheet partnerships run by its CFO. In some cases, however, it still controlled those entities and even backed their debts, sometimes with notes convertible into Enron shares. In the third quarter of 2001, the company reported a $618 million loss--the stock price plummeted and shareholder equity shrank shrank
A past tense of shrink.
a past tense of shrink
shrank shrink by $1.2 billion--caused, in part, by problems at the off-balance-sheet partnerships. Shortly afterwards Enron filed for protection from creditors under Chapter 11 of the federal bankruptcy code Bankruptcy Code may refer to:
Of course a subsidiary structure isn't always right for every company and its owners. Reicher recalls working with a client who operated a large and successful retail store and decided to open another one in a different location. Reicher argued for putting the second store in its own subsidiary, both for the liability protections and to make it easier to sell the second location at a later date should the owner decide to do so. "They were both good reasons, and the owner even agreed," Reicher recalls. "But he decided not to do it because he didn't want the hassle" of filing the necessary legal paperwork and maintaining a separate set of books. The kicker Kicker
A right, warrant, or some other feature added to a debt instrument to make it more desirable to potential investors.
The ability to trade a bond or other debt instrument in for stock may entice investors, if they feel the stock will appreciate. , Reicher says, is that it wouldn't have been much of a hassle. "All he would have needed was a separate set of books for each store for tax-reporting purposes, and he was keeping separate books for the two stores anyway for cost-accounting purposes," Reicher says.
In yet another case, Reicher says, a client who did operate two separate companies engaged him to merge them into one company to facilitate their sale. One of the subsidiaries was profitable, he notes, the other wasn't, and the client didn't want a buyer cherry-picking the profitable business and leaving him stuck with the money-loser. Although merging the two businesses wouldn't obligate obligate /ob·li·gate/ (ob´li-gat) pertaining to or characterized by the ability to survive only in a particular environment or to assume only a particular role, as an obligate anaerobe. a buyer to take both, he says, the client believed he would have a better chance of selling them as a package if they were organized as a single entity.
Even in legitimate applications where creating a subsidiary will clearly help to achieve corporate aims, companies and their advisers structure the deal so it won't run afoul of federal tax, employment and benefit regulations. For example, while offering employees in individual subsidiaries different nonqualified benefits such as stock options is perfectly acceptable, offering them different qualified plans such as pension or profit-sharing vehicles subject to the Employee Retirement Income Security Act The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. § 1001 et seq. (1974), is a federal law that sets minimum standards for most voluntarily established Pension and health plans in private industry to provide protection for individuals enrolled in these plans. of 1974 requires careful drafting. In practice, most qualified plans are written to cover a certain class of employee such as "all nonunion nonunion /non·union/ (non-un´yun) failure of the ends of a fractured bone to unite.
The failure of a fractured bone to heal normally. employees" or "all manufacturing employees." Unless a plan specifically limits participation to employees in a specific locale (programming) locale - A geopolitical place or area, especially in the context of configuring an operating system or application program with its character sets, date and time formats, currency formats etc.
Locales are significant for internationalisation and localisation. , those employed by a subsidiary--even those engaged in a different line of business in a different part of the country--are typically covered by it and cannot be excluded.
Subsidiaries can, as independent legal entities, borrow money and even issue their own debt. But if they arrange for their parent company to guarantee a loan, their independence--and the legal protections that go with it--are compromised. "A guarantee blows away the liability protection because by contract the subsidiary has had somebody else (the parent) say, `I'll be good for their debt,'" says Reicher.
Companies and their CPAs also must be careful when booking intercompany transfers to and from subsidiaries that are not being included in a consolidated tax return, as would be the case with a less-than-80%-owned subsidiary or most foreign subsidiaries. Moran recalls one company that had formed unconsolidated subsidiaries and then sent them money as needed as needed prn. See prn order. . Unfortunately, it classified the transfers as loans. "They were actually capital contributions, and as such, the company wasn't charging interest," she says. "But when the IRS An abbreviation for the Internal Revenue Service, a federal agency charged with the responsibility of administering and enforcing internal revenue laws. reviewed their tax returns, the agency said, `Oh, you've made a loan, where are the interest payments?'" The company ultimately was able to explain the payments weren't loans, but only after the misunderstanding had led to an expensive audit. Moran also notes IRS regulations require that all intercompany transactions Intercompany transaction
Transaction carried out between two units of the same corporation. be priced as if they were done at arm's length arm's length adj. the description of an agreement made by two parties freely and independently of each other, and without some special relationship, such as being a relative, having another deal on the side or one party having complete control of the other. and satisfy a legitimate business interest, not just a tax objective.
The steps involved in creating a subsidiary aren't, by themselves, that complicated (see "The Mechanics of Forming a Subsidiary," page 79). CPAs who advise employers or clients on the matter should have a strong grounding in tax regulations, particularly those relating to intercompany transfers of assets or liabilities. They also should be able to clearly delineate the many advantages that a subsidiary structure can offer, particularly to management teams or owners who may be leery of introducing added complexity into their operations but need to take a fresh look at their business strategies. For most companies expanding their operations to include new lines of business or to operate in new locations, creating a subsidiary is a cost-effective undertaking that can yield substantial tax and liability benefits.
Businesses Have Global IDs
D&B assigns a unique nine-digit "D-U-N-S" number to nearly every business in the world. The company links the D-U-N-S numbers (recognized as a global business identification standard) of more than 64 million parent companies, their subsidiaries, headquarters and branches around the world. In the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. suppliers doing business with the federal government via electronic data interchange See EDI.
(application, communications) electronic data interchange - (EDI) The exchange of standardised document forms between computer systems for business use. EDI is part of electronic commerce. must submit their D-U-N-S number for registration and transaction processes.
Source: D&B, Murray Hill, New Jersey
Is It Time to Establish a Subsidiary?
CPAs can offer this checklist to company management to help determine whether it should set up a subsidiary. A "yes" answer to any of the questions indicates that forming a subsidiary may be in order:
 Is there a chance the company can be sued? Is the magnitude of the liability exposure in a particular area of the business high? Does the company produce a dangerous product or render a dangerous service? Is the company in a litigious litigious adj. referring to a person who constantly brings or prolongs legal actions, particularly when the legal maneuvers are unnecessary or unfounded. Such persons often enjoy legal battles, controversy, the courtroom, the spotlight, use the courts to punish industry?
 Is it prudent to isolate multiple products or businesses for a bank credit rating?
 Are there plans to raise new capital to expand a specific portion of the company? Do investors want to invest in only part of the company?
 Are there plans to sell only a portion of the business?
 Will there be a distribution of various segments of the business to family members?
 Can the company enhance the profile of a product by using the same name for a marketing benefit but keep products in segregated divisions?
 Will the company award stock options in only one product or stock options in different products and divisions to different employees?
 Are there government benefits (set-asides for minority-owned businesses) available based upon certain share ownership criteria such as 51% ownership by a demographic segment?
 Are there beneficial tax consequences based on different geographic locations such as discrete operations in separate states or countries?
 Will any of the above questions receive a "yes" answer in the next five years? (If so, for tax reasons the subsidiary to be split off needs to be in operation for five years to avoid ordinary income tax treatment on sale.)
Source: Lee Reicher, CPA, is an attorney and managing partner at the Los Angeles law firm Reish Luftman McDaniel & Reicher, www.reish.com.
The Mechanics of Forming a Subsidiary
Forming a subsidiary generally is a straightforward undertaking. Here are the steps a hypothetical manufacturing company, Dual Corp., would take to set up a subsidiary for its West Coast operation, which makes bicycle components, thereby isolating that unit from the lawn furniture operation it runs on the East Coast.
* Step 1: Create the new corporation. Dual Corp. forms a new, wholly owned corporation, West Coast Dual, by securing a federal tax identification number for it and filing the appropriate articles of incorporation The document that must be filed with an appropriate government agency, commonly the office of the Secretary of State, if the owners of a business want it to be given legal recognition as a corporation. with the state in which the subsidiary is incorporated. In this case it's California. Legal counsel prepares the original minutes and the bylaws The rules and regulations enacted by an association or a corporation to provide a framework for its operation and management.
Bylaws may specify the qualifications, rights, and liabilities of membership, and the powers, duties, and grounds for the dissolution of an for the subsidiary and also secures any state or local licenses the subsidiary needs to operate.
* Step 2: Assign assets and liabilities. Dual Corp. assigns to the new subsidiary all of the physical assets of the West Coast operation, including the manufacturing plant and its inventories. It also assigns all of the West Coast operation's assets and liabilities to West Coast Dual, such as its accounts payable and accounts receivable accounts receivable n. the amounts of money due or owed to a business or professional by customers or clients. Generally, accounts receivable refers to the total amount due and is considered in calculating the value of a business or the business' problems in paying , although it could have retained them had it wished. All of these are tax-free transactions but must be recorded on the assignment papers prepared by Dual Corp.'s counsel. Dual Corp. also funds the company with a $100,000 capital contribution, although it could have structured that contribution as a loan. Dual Corp. must transfer any assets that are tided or registered, such as real estate, vehicles, patents or trademarks, to West Coast Dual through the appropriate agencies.
* Step 3: Set up the books. The West Coast subsidiary has long maintained its own books for cost-accounting purposes. Now Dual Corp.'s CPAs work with the subsidiary's finance staff to install the accounting systems needed to prepare West Coast Dual's own income statements and balance sheets, which will be required whether the parent company tries its federal income taxes on a consolidated or unconsolidated basis.
The role of Dual Corp.'s accountants in all this, says CPA and tax attorney Lee Reicher, is to make sure the subsidiary's accounting systems are set up properly, to ensure that all assets and liabilities transferred to the new entity are properly identified, valued (usually at book value) and removed from the parent's books and to ensure that the new subsidiary complies with all of its federal and state tax reporting requirements. The CPAs may also ascertain that employees of the subsidiary are properly covered under the parent company's employee benefit plans.
If Dual Corp. decides to file a consolidated federal income tax return (form 1120), its CPAs must make sure it attaches an affiliations schedule (form 851) listing the name and federal employer identification number Applicable to the United States, an Employer Identification Number or EIN (also known as Federal Employer Identification Number or (FEIN)) is the corporate equivalent to a Social Security Number, although it is issued to anyone, including individuals, who has to pay of the new subsidiary. In the first year the subsidiary is included in the return, Dual Corp. also must attach form 1122, giving the subsidiary's consent to be included on the return.
James Joner purchased 203 acres in 1764 and laid out the town of Dover. It was known as Jonerstown until 1815, when it was officially called Dover. . His e-mail address See Internet address.
e-mail address - electronic mail address is email@example.com.