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Restructuring businesses in the 1990s: both tax and accounting considerations prevail when refinancing troubled companies.

Both tax and accounting considerations prevail when refinancing troubled companies.

As the havoc wrought by the leverage binge of the 1980s becomes more evident, many companies are force to restructure to avoid bankruptcy. Declining growth and overleveraging have caused companies to attempt major capital structure adjustments. Investors, seeking to profit from such situations, have adopted a variety of strategies for securities of distressed companies. New terms such as reverse LBO, prepackaged bankruptcy and fulcrum security have entered the business lexicon. (For definitions of some of these new terms, see the glossary on page 29). This article reviews some key federal income tax and accounting concepts related to the burgeoning area of restructuring and refinancing troubled companies.

TAX ATTRIBUTES

Troubled companies often experience losses for a number of years. For such companies, tax attributes such as net operating loss (NOL) carryforwards may be one of the major elements of value. Careful planning is required to minimize limitations on the use of NOLs in the going-forward entity.

Before considering use of NOLs, it's necessary to carefully evaluate the quality of the losses. Restructuring is a wasted exercise if NOLs are based on highly aggressive tax position unlikely to withstand Internal Revenue Service scrutiny. Such positions might include writeoffs of purchased intangible assets, covenants not to compete and acquisition and financing fees. Potential consolidated return liabilities for unpaid taxes of former affiliated companies or potential claims against affiliates for the uncompensated use of prior losses should also be evaluated.

From a restructuring viewpoint, issuing stock in exchange for debt or fresh equity can severely limit use of existing NOLs. A limitation arises if, within three years while losses exist, there is a greater-than 50% increase (measured by value) in the direct or indirect ownership of a company. This simple formula may lead to some surprising results.

In the scenario illustrated in the exhibit on page 31, an ownership change has occurred; there has been a greater-than-50% increase in ownership, even though no single shareholder has gained control.

Planning opportunities also can be found. Because the rules focus only on value, it is possible to provide voting control or common equity to a new investor without triggering a change, for example, by having existing shareholders retain sufficient preferred stock. Options to acquire stock and other executory contracts are deemed exercised, regardless of contingencies, but only when exercise would trigger an ownership change.

If an ownership change occurs, the annual limit on the use of NOLs thereafter is equal to the fair market value of all classes of equity immediately before the transaction multiplied by a federal long-term tax-exempt rate, currently about 6 1/2%. Any unused annual limit is added to the next year's limit.

Depending on the overall fair value of the company's assets relative to their tax basis at the time ownership changes, further adjustments are possible. For example, accrued expenses and "built-in" losses on assets recognized after the ownership change can be subject to the limitation as well. On the other hand, accrued income and built-in gains recognized after ownership changes may be sheltered by perchange NOLs without limitation. It is critical both in measuring overall equity value (at least for private companies) as well as adjustments for accrued or built-in items, to have an accurate tax valuation performed.

BANKRUPTCY AND INSOLVENCY

Generally, there are no immediate tax costs or effects from filing for protection under chapter 11 of the Bankruptcy Code. However, a company reorganizing under the code receives more favorable tax treatment to assist in its rehabilitation. Indeed, tax factors may cause a company to consider a bankruptcy filing, especially if the settlement can be preapproved.

The limitation on NOLs discussed above is imposed less stringently on companies that undergo an ownership change while in chapter 11. Then, the limitation is based on the company's equity value increased to reflect any debt forgiven as a result of the reorganization plan. In addition, special rules may apply when control of the reorganized company is awarded to "historic" creditors (original trade creditors or creditors whose claims are at least 18 months before the filing). Then, the company alternatively can elect to reduce its NOLs for a portion of the debt forgiveness plus certain prior periods' interest expense, in lieu of any limit on use of NOLs. Recently proposed regulations relax the historic creditor requirement so normal trading activity does not foreclose this route for deals with public bondholders.

If, after electing this option, another change in ownership occurs within two years, remaining prereorganization NOLs are lost entirely. Accordingly, creditors may need to agree to hold their investment for two years.

CANCELLATION OF INDEBTEDNESS INCOME

Although preserving NOLs is important, the need to minimize taxable income as a result of restructuring drives the structures of many deals. In general, when debt is retired or restructured as less than its carrying value, the difference is considered cancellation-of-debt (COD) income. There is no bread relief from recognition of COD income for solvent corporations not in chapter 11. Recently issued regulations give rise to taxable income even when the debt of a company is reduced as part of buyout or takeover.

Insolvent and bankrupt companies, however, can exclude COD income from taxable income. The exclusion applies to an insolvent company only to the extent of its insolvency but applies to a company in bankruptcy without limitations. A company is insolvent for this purpose if, immediately before the cancellation of debt, its liabilities exceed the fair market value of its assets. That a troubled company's equity has some speculative value should not prevent an insolvency determination. In measuring insolvency, key questions include whether contingent liabilities may be taken into account and, if so, what liabilities quality. An independent appraisal in conformity with tax requirements is critical.

This particular relief generally operates only as a deferral. A corporation excluding COD income is required to reduce its tax attributes - NOLs, general business credits, capital loss carryovers, tax basis of property net of liabilities and foreign tax credit carryovers - by the amount of excluded COD income. A permanent benefit arises, however, to the extent excludable income exceeds tax attributes.

In determining COD income in a debt-for-debt exchange, the "adjusted issue price" (the carrying value) of the old debt is compared to the new debt's "issue price." When publicly traded securities are involved, the new debt's issue price is its market value. For example, if a solvent debtor corporation not in chapter 11 issues new publicly traded bonds having a face and market value of $700 in exchange for $1,000 principal outstanding bonds issued at par, the debtor immediately recognizes $300 of COD income.

However, for swaps in which neither obligation is publicly traded, as defined for tax purposes, possibly including many junk bonds, the new debt's issue price is face value discounted at the "applicable federal rate." As this rate is comparatively low (essentially the U.S. Treasury borrowing rate), an artificially high issue price results, reducing or eliminating COD income on bank debt and other private refinancings.

A debt-for-debt exchange also may create original issue discount (OID) if the issue price of the new debt is less than its principal amount. If in the above example the new bonds actually traded for only $600, there would be $400 of COD income and $100 of OID. Similarly, if the new bonds had a face amount of $1,000 (but traded for only $600) there would be $400 of COD income and $400 of OID. In contrast, if neither of the bonds was publicly traded, there would be little or no COD income or OID.

OID is deducted by the debtor and included in the holder's taxable income over the new debt's term. If the debtor shelters COD income with NOLs, allowable OID deductions might operate to use NOLs that would be limited if the restructuring produces an ownership change. OID deductions, however, may be deferred until maturity or may be permanently disallowed under the high-yield obligation rules applying to debt yielding roughly 12% or more. From the holder's perspective, regardless of whether principal is reduced, annual OID income is shielded by a proportionate amount of any loss that is realized (but generally not immediately deductible) on the exchange.

The debt-for-debt exchange rules apply also to any significant modification on an obligation, on the theory there has been a deemed exchange. Thus, a reduction in principal amount, a change in interest rate or a waiver of a scheduled interest rate adjustment on existing debt are treated as though old debt was actually exchanged for new debt.

Another exception to the COD income rules applies to issuances of common or non-redeemable preferred stock for debt. In such cases, COD income is permanently avoided (tax attributes are not reduced) by insolvent or bankrupt debtors. The theory is creditors might recover their loans through stock appreciation. Again, for insolvent companies this relief is limited to the amount of insolvency, whereas a bankrupt company gets blanket relief. It is unclear whether parent company stock issued for subsidiary debt qualities.

When cash, new debt or significant modifications to old debt also are part of an exchange, a sufficient amount of stock must be used to obtain stock-for-debt relief. If applicable, such relief applies to the entire transaction rather than just a portion of debt deemed forgiven for stock. Recently proposed regulations would tighten this requirement for troubled companies.

FINANCIAL ACCOUNTING GUIDELINES

The tax treatment of a restructuring changes depending on whether a company is solvent, insolvent or bankrupt; generally, tax treatment becomes increasingly favorable as a company heads toward bankruptcy. Similarly, financial reporting varies depending on whether a debt restructuring occurs within the context of a quasi reorganization, a troubled debt restructuring or as part of a bankruptcy settlement. The first two are discussed below. (See JofA, Jan. 91, page 74, and the American Institute of CPAs accounting standards executive committee Statement of Position 90-7, Financial Reporting by Entities in Reorganization Under the Bankruptcy Code, for a discussion of the third.)

The first alternative available to a company experiencing continued book losses resulting in a retained earnings deficit is to reorganize on its own - a quasi reorganization. The accounting rules for quasi reorganizations are covered in chapter 7A of Accounting Research Bulletin no. 43, Restatement and Revision of Accounting Research Bulletins, and, for public companies, in Securities and Exchange Commission Staff Accounting Bulletin Topic 5-S. Under a quasi-reorganization, often termed fresh-start accounting, a company eliminates its retained earnings deficit and revalues its assets and liabilities to fair market value, resulting in a complete readjustment of its balance sheet as though the company was being recreated at the reorganization date. While application of quasi-reorganization accounting generally requires shareholder approval, it is essentially an accounting readjustment, not a legal reorganization and has no income tax consequences.

There are a number of benefits to a quasi reorganization. It requires less time and money than a legal reorganization, and if the company is generating positive income, dividends may be paid immediately rather than, as some states require, being delayed until the negative retained earnings balance has been eliminated. An important concern in quasi-reorganization accounting is the accounting treatment afforded postreorganization use of the NOLs that exist at the these NOLs must be credited directly to equity and not to earnings, as is normally the case for a troubled company that is restructuring debt but is not electing a quasi reorganization.

Assuming the company does not elect quasi reorganization, a restructuring of debt by a financially distressed company falls under Financial Accounting Standards Board Statement no. 15, Accounting by Debtors and Creditors for Troubled Debt Restructurings. Statement no. 15 considers a debt structuring troubled if a creditor grants a concession it would not consider otherwise. This concession involves either modification or elimination of the debt in a way not originally considered in the debt agreement.

The accounting results of a troubled debt restructuring vary depending on whether there is full settlement, modification of debt terms or a combination of modification and partial settlement. If cash is exchanged in full settlement of the debt, the company recognizes an extraordinary gain (net of any related tax effect) for the difference between the carrying amount of the debt ad the cash amount. Similarly, when the company issues equity in full settlement of the debt, it recognizes an extraordinary gain for the difference between the carrying value of the debt and the fair value of the equity issued. For example, if ABC Company settles $100 million of debt for $60 million cash or equity worth $60 million, the company will (ignoring any tax effects) recognize an extraordinary gain of $40 million.

If a company negotiates a modification of terms to existing debt, or exchanges new debt for old, the restructuring is generally accounted for on a prospective basis; no change is made to the carrying amount of the debt unless it exceeds the gross flows of the modified or new debt. Gross flows are calculated by adding dollar interest and principal payments, without discounting for the time value of money.

If the modified debt's grows flows exceed its existing carrying amount, the interest expense is recalculated to an effective rate that equates the present value of future cash payments with the debt's existing book value. Assume ABC Company had $100 million of outstanding debt at 10% annual interest and modified the debt terms to $75 million principal due in five years with annual interest of 8%, to give a total (interest plus principal payments) of $105 million. ABC would not change the carrying value of the debt, as the gross flows of $105 million are greater than the original principal of $100 million. Instead, an effective interest rate would be calculated equating the $100 million existing carrying value with the $105 million future cash interest and principal payments. This effective interest rate (approximately 1% per year) would then be used to calculate the company's periodic interest expense.

If gross flows are less than the debt's book value, the debt's carrying value is reduced to the total gross flow value, and an extraordinary gain is recognized on the difference. Finally, since the debt is carried at the amount of all future cash payments, these are accounted for as a reduction in principal; no future interest expense will be recognized. If ABC company modified its $100 million of 10% debt to $50 million principal due in five years with interest on the new principal at 8% per year, or total gross flows of $70 million, ABC would reduce the company value of its debt to $70 million and recognize a $30 million extraordinary gain and all future payments would be characterized as principal repayments.

Often, a restructuring does not involve an exchange or a modification of terms alone but involves a combination of both: a partial settlement and some modification of debt terms. In these cases, the partial settlement is handled first, with the carrying value of the debt reduced by the cash or the fair market value of the asset or equity exchanged. The residual carrying value of the debt is then compared with the gross cash payments under the modified terms. As described above, either the interest rate is recalculated or a gain on restructuring results, depending on whether gross cash payments are greater or less than the debt's carrying value.

As a further complication, many recently completed and proposed restructuring also have involved a change of control. This may occur as a result of an infusion of equity by another company or an investor or major creditor getting over 50% of the company's voting stock as part of the restructuring. Both deals raise the issue of appropriate accounting treatment - is it a restructuring or are the changes so profound a fresh-start type of accounting along the lines of a quasi reorganization or purchase accounting is more appropriate? Fresh-start accounting is now generally required for companies emerging from bankruptcy when a change of control is involved.

Further, if a change of control is viewed as a purchase, should the acquired company's book continue to be presented on a historical basis for separate financial statement reporting or should the acquirer's cost in purchasing the troubled company result in a restatement of asset and liability values (push-down accounting, whereby the acquirer's cost is pushed down to the target?) While push-down accounting is not required for non-SEC registrants, the SEC generally requires push-down treatment in an acquisition when the equity becomes "substantially wholly owned" - usually 80% ownership or greater. This is relevant since often the new or modified debt of the target is publicly traded, making the company an SEC registrant. Clearly, the choice between fair value accounting and troubled-debt restructuring accounting can have a significant impact on the company's balance sheet and future earnings.

TAX AND ACCOUNTING TREATMENT

OF CREDITORS

Since debtor and creditor treatments in tax and accounting are not mirror images, negotiating to minimize tax exposure and enhance the financial reporting of a restructuring can become complex modeling assignments.

Creditors' ability to recognize losses is clearly an area where creditor and debtor interests diverge - a debtor may wish to structure a tax-free transaction to avoid COD income, and the creditor, when the transaction would generate a loss, wants a tax benefit. Generally, receipt of a new securities or stock or modification of existing obligations does not allow the creditor to recognize a tax loss. Creditors essentially need to be cashed out, either by the debtor or through a secondary sale, to claim a loss for tax purposes. To the extent principal is reduced in a debt-for-debt exchange, however, creditors with a loss will recognize it for tax purposes as premium amortization over the term of the new debt. Creditors realizing gains in exchange offers (such as secondary market investors) usually do not recognize taxable income except to the extent cash is received or principal increased.

For accounting purposed, the difference between the fair value of an asset, or equity given in settlement of a debt, is an extraordinary gain or loss to the debtor, however, it is generally an ordinary gain or loss to the creditor. Under the alternate scenarios described in which term modifications occur, the creditor generally recognizes an ordinary loss compared to the debtor's extraordinary treatment when the new gross cash payments are less than the old debt carrying value. If the new gross cash flows are greater, the creditor's treatment mirrors that of the debtor - principal is not restated and an effective interest method is applied prospectively. These rules could change since the FASB, as part of its financial instruments project, has begun reconsidering the subject of accounting by creditors for loan impairments.

CRITICAL UNDERSTANDING

In the increasingly adverse debtor-creditor environment, understanding the real cash and financial reporting impact of tax and accounting structuring is critical. This applies to the one-time impact to income recognized for tax or accounting purposes, as well as to the financial statement presentation and tax status of the going-forward entity.

GLOSSARY

OF RESTRUCTURING

TERMS

COD income. Taxable income that arises when debt is restructured or retired at less than its carrying value, Special relief is available, however, for companies that are either insolvent or in bankruptcy.

Fulcrum security. Subordinated debt or preferred stock of a troubled company which the investor expects to convert into equity once the company restructures or reorganizes.

Grace period. Obligations providing for little or no cash due for the first few years, allowing the company a "grace period." This includes zero coupon bonds and "pay-in-kind" debt (where interest is paid with additional bonds), as well as "reset" provisions to increase interest rates some years after original issuance. Many companies now undergoing or facing restructuring were leveraged buyouts (LBOs) of the late 1980s involving securities with a grace period that has ended.

Prepackaged bankruptcy. A prearranged bankruptcy settlement under chapter 11 of the Bankruptcy Code wherein the key terms of the exchange offer and plan of reorganization are agreed on by company creditors and stockholders in advance of the bankruptcy filing. Nontendering bondholders can be compelled to acquiesce, thereby expediting the bankruptcy settlement.

Reverse LBO. Direct equity investment in a troubled company, wherein the additional capital infusion allows existing debt to be reduced to a more acceptable level. Examples of such transactions include those made by KKR with RJR Nabisco; Equitable and Merrill Lynch with Supermarkets General; and Ito-Yokado with Southland.

Trading in claims. A way of maximizing yield, or returns, by trading in the securities or trade payables of troubled companies. Similarly, a number of so-called fallen angel bonds, originally issues as investment grade, have attracted the interest of investors expecting a turnaround or restructuring by the company.

Vulture capitalists. Investment groups and funds that specialize in investing in securities of troubled and bankrupt companies.

Wrap plan. A method of restructuring and refinancing a troubled company that involves "wrapping" the restructuring plan around an S-4 exchange offer. The S-4 describes the restructuring terms and stipulates that unless these terms are accepted, the company will file for chapter 11 bankruptcy.

EXECUTIVE SUMMARY

* AS MORE COMPANIES ARE forced to restructure to avoid bankruptcy, it's important to consider key tax and accounting concerns for restructuring and refinancing troubled companies.

* ONE OF THE MAJOR ELEMENTS of value in a troubled company is net operating loss carryforwards. Careful planning is required to maximize the use of these tax benefits.

* A COMPANY REORGANIZING under the Bankruptcy Code is eligible for more favorable tax treatment to assist in its rehabilitation.

* AVOIDING CANCELLATION OF debt (COD) income is a major factor in putting together a restructuring deal. Both bankrupt and insolvent companies can exclude COD income from taxable income.

* ACCOUNTING TREATMENT of a restructuring varies depending on whether it occurs through a quasi reorganization, a troubled debt restructuring or as part of a bankruptcy settlement.

* DEBTORS AND CREDITORS ARE among the interested parties to be satisfied in a restructuring. Negotiations may be necessary to minimize collective tax exposure and to enhance financial reporting.

* THE ULTIMATE GOAL IN a restructuring should be to reflect accurately the financial reporting transaction's financial reporting aspects and to optimize values in the business plan.

Measuring NOL ownership change
Shareholder Percentage of ownership
 Before After Increase
 A 30% 10% 0%
 B 40 5 0
 C 30 45 15
 D 0 40 40
 100% 100% 55%


ROBERT H. HERTZ, CPA, FCA, is a partner of Coopers & Lybrand in New York City. He is a member of the American Institute of CPAs, a fellow of the Institute of Chartered Accountants in England and Wales and serves on the Financial Accounting Standards Board financial instruments task force. EDWARD J. ABAHOONIE, CPA, LLM, is a partner of Coopers & Lybrand in New York City. He is a member of the AICPA corporations and shareholders taxation committee.
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Title Annotation:includes glossary of restructuring terms
Author:Abahoonie, Edward J.
Publication:Journal of Accountancy
Date:Apr 1, 1992
Words:3797
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