The benefits and burdens of QSubs.

EXECUTIVE SUMMARY

* The QSub election is effective when filed, if another appropriate date has not been specified.

* When a QSub election is made, the subsidiary is deemed to have liquidated into the parent.

* The IRS has provided transitional relief from the step-transaction doctrine for QSub elections made until 60 days after the final regulations are issued.

Tax planning via the use of S corporation subsidiaries became a reality after the Small Business Job Protection Act of 1996, which created the "qualified subchapter S subsidiary" (QSub) for tax years beginning after 1996. Despite the availability of this type of entity, comprehensive guidance was not available until proposed regulations were issued. This article explains these rules and the planning potential stemming therefrom.

The Small Business Job Protection Act of 1996 (SBJPA) enacted significant changes for S corporations, resulting in new tax planning opportunities. One of the major changes, SBJPA Section 1308, repealed Sec. 1361(b)(2)(A), allowing S corporations to own (1) 80% or more of a domestic or foreign C corporation and (2) domestic qualified subchapter S subsidiaries (QSubs) for tax years beginning after 1996. QSubs are treated as disregarded entities; they have a separate legal existence for liability purposes, but exist only as a division of the parent S corporation (parent) for tax purposes. New Sec. 1361(b)(3)(B) defines a QSub as any domestic corporation that is not an ineligible corporation(1) if an S corporation (1) holds 100% of its stock and (2) elects to treat the subsidiary as a QSub.

The Service released proposed regulations on QSubs.(2) This article will review the mechanics of electing and working with QSubs, the consequences of terminating QSub status, the tax opportunities and pitfalls of using QSubs and the tax advantages of using a QSub versus a single-member limited liability company (SMLLC), another type of disregarded entity.

Election Procedure

Notice 97-4(3) prescribed how to elect QSub status. The parent must file Form 966, Corporate Dissolution or Liquidation, printing at the top "FILED UNDER NOTICE 97-4" to make a QSub election. Form 966 should be filed with the Service Center where the subsidiary fried its most recent tax return. If a new corporation is formed, Prop. Regs. Sec. 1.1361-3(a)(1) prescribes that Form 966 should be fried with the parent's Service Center. The parent can provide that QSub status will be effective up to two months and 15 days before (or up to 12 months after) the date the QSub election is actually made. This procedure applies even if the QSub is a new entity.

Although the proposed regulations changed many of the prescriptions of Notice 97-4, the preamble states that taxpayers must follow the notice until the regulations are finalized. Prop. Regs. Sec. 1.1361-3(a)(1) indicates that an S corporation making a QSub election will file a new form that the IRS will develop. The form will be signed by a person authorized to sign the S corporation's return.

Prop. Regs. Sec. 1.1361-3(a)(3) presents several possible effective dates for the QSub election. The election may be made at any time during the year. In general, QSub status is effective the day the election is filed. However, the parent may specify a different effective date, which may be as early as two months and 15 days before or 12 months after the actual filing.

Example 1: A calendar-year S corporation acquired 100% of a domestic C corporation on May 1, 1999. On July 1, 1999, a QSub election was made. If not specified, the election was effective on July 1, 1999; however, it could have been effective as early as May 1, 1999 or as late as July 1, 2000.

Rev. Proc. 98-55(4) permits inadvertent late elections to be rectified. Basically, a late QSub election may be made within 12 months from the original due date of the S election, but not later than the unextended due date of the return for the first S year. The QSub election should be filed with the applicable Service Center, with "FILED UNDER REV. PROC. 98-55" printed at the top of Form 2553, Election by a Small Business Corporation. A reason for the failure to file a timely S election must be provided. Because this is not a letter ruling request, no filing fee is required.

Deemed Liquidation

Prop. Regs. Sec. 1.1361-4(a)(2) provides that on a QSub election, the subsidiary is deemed to have liquidated into the parent, generally tax-free under Secs. 332 and 337(5); if it is tax-free, the parent will take the QSub's carryover basis in its assets. Under Sec. 381 (a), the QSub's other tax attributes will also carry over to the parent. The parent's investment in the subsidiary's stock will disappear on the Sec. 332 liquidation. If the QSub was formerly a C corporation, exposure to Sec. 1374 built-in gains tax, Sec. 1375 excess passive investment income (PII) tax and Sec. 1363(d) LIFO recapture tax may occur. If a potential QSub is insolvent (i.e., the fair market value (FMV) of its assets is less than its liabilities), the liquidation would be a taxable transaction.

After the election and deemed liquidation, the QSub becomes a disregarded entity. Under Sec. 1361 (b) (3) (a) (ii), the parent is treated as owning all of the QSub's assets, liabilities and similar tax items, and must report them on its own return. In effect, the QSub is treated as a division of its parent; thus, any transfer of property within the parent S and QSub group is nontaxable. Loans to the QSub by a shareholder will increase the adjusted basis for loss in the parent company. A consolidated return is not allowed for a parent and a QSub subsidiary; instead, only one Form 1120S is filed, which should reflect the income, losses and separately stated items of both the parent and the QSub. Thus, nonseparately reported profits and losses could offset each other before flowing to the shareholders.

When Liquidation Occurs

Under Prop. Regs. Sec. 1.1361-4(b)(1), the liquidation occurs at the close of the day before the QSub election is effective. Thus, if the parent elected S status for itself on the same day that it made a QSub election for its subsidiary, QSub status will be deemed to occur the day before the parent's S status is effective, while the parent is still a C corporation. This may raise some interesting questions. For example, if a C corporation and its wholly owned subsidiary are on the LIFO method and convert to FIFO in the year before becoming an S corporation, Sec. 1363(d) LIFO recapture would not apply; Sec. 1374 would apply to make the Sec. 481 adjustment a built-in gain item. If LIFO recapture tax applied, the rate would be the one in effect the year before the S election, rather than the Sec. 1374 rate (currently, 35%) on built-in gains. On the other hand, built-in losses may offset the Sec. 481 adjustment, but not the LIFO recapture tax. Also, negative taxable income will postpone Sec. 481 recognition, but not the LIFO recapture tax.

Prop. Regs. Sec. 1.1361-4(b)(2) provide that if the subsidiary is not wholly owned by the parent, the QSub election is deemed to occur immediately after the parent first owns 100% of the subsidiary.

If a qualified stock purchase is made of the potential QSub, the parent may elect Sec. 338 before the QSub election takes effect, which would eliminate built-in gain, PII tax, etc. The QSub election will be effective the day after the Sec. 338 election, under Prop. Regs. Sec. 1.1361-4(b)(3).

Not all of the consequences stemming from the treatment of the QSub election as a deemed liquidation are beneficial for the parent. For example, the parent will inherit the QSub's earnings and profits (E&P) under Sec. 381(a). Thus, if more than 25% of the QSub's gross receipts are from passive investments, the parent will incur Sec. 1375 tax on its excess PII. Further, the parent's S status will terminate under Sec. 1362(d)(3) if it has accumulated E&P and excess PII for three consecutive years. On the other hand, if the parent's gross receipts are large relative to passive income, this might shelter the QSub's passive activities. The reverse is also true; a large QSub's gross receipts could shelter the parent's exposure to S stares termination.

If the QSub was previously a C corporation and the parent sells or exchanges the QSub's assets within 10 years of the QSub election, the sale may be subject to the Sec. 1374 built-in gains tax. Similarly, if the QSub was a C corporation using the LIFO inventory method, the Sec. 1363(d) LIFO recapture tax would apply to the subsidiary. However, if the acquisition occurred under Sec. 338, or was a taxable asset purchase, no tax attributes would inure to the parent and no PII tax, built-in gains tax, etc., would apply.

Termination

QSub status may be terminated in one of two ways: (1) revocation of the QSub election by the parent, under Prop. Regs. Sec. 1.1361-3(b)(1), or (2) failing to meet the requirements for QSub status under Sec. 1361 (b)(3) (C). Under Prop. Regs. Sec. 1.1361-3 (b) (2) and-5(a), termination is effective on (1) the effective date of a revocation statement (or on the date the statement is filed, if no date is specified), (2) the dose of the last day of the parent's last tax year as an S corporation or (3) the close of the day on which an event renders the subsidiary ineligible for QSub status under Sec. 1361(b)(3)(B).

Revocation

Prop. Regs. Sec. 1.1361-3(b) prescribes procedures for revoking QSub status. The parent must file a statement including the parent's and QSub's names, addresses and employer identification numbers (EINs), with the Service Center where the S corporation's most recent tax return was properly filed. If the parent does not specify the date for revocation of QSub status, it will be the date the statement is filed. If the parent specifies a date, it cannot be more than two months and 15 days before (nor more than 12 months after) the date the revocation statement is filed.

Disqualification 

If the entity no longer qualifies for QSub status, the parent must notify the IRS. According to Prop. Regs. Sec. 1.1361-5(a)(2), the parent must attach to its return for the tax year in which the termination occurs a notification that the QSub election has terminated, the date of termination and the parent's and QSub's names, addresses and EINs. The proposed regulations do not specify the consequences if the parent does not so notify the IRS.

On termination, under Prop. Regs. Sec. 1.1361-5(b), the former QSub is deemed to have acquired from its parent immediately before the termination its assets and liabilities in exchange for stock of a new corporation. Typically, this termination is tax-free under Sec. 351. Gain may result under Sec. 357(c), however, from the termination of QSub status if the QSub's liabilities are greater than the adjusted basis of its assets or, under Sec. 357(b), if nonbona fide debt is transferred to the new corporation. Thus, if credit card debt related to an S shareholder's personal expenditures was transferred to the new corporation, theoretically, all liabilities transferred would be treated as boot and lead to taxable gain at the parent level. In addition, the new corporation requires a year-end choice, accounting method elections, etc.

After termination of a QSub election, the corporation generally may not elect S status or reelect QSub status for five tax years, under Prop. Regs. Sec. 1.1361-5(d)(1). IRS consent is required to elect S status or reelect QSub status before the five-year period expires. Prop. Regs. Sec. 1.1361-5(c) provides that a taxpayer may obtain relief from an inadvertent termination of a QSub election under the standards for obtaining relief from an inadvertent termination of an S election under Regs. Sec. 1.1362-4 (generally, a more-than-50% change in ownership). However, under Prop. Regs. Sec. 1.1361-5(d), if a QSub election terminates because of a disposition of the corporation's stock, the corporation, without IRS consent, may make an S or QSub election before the five-year period expires, if certain conditions are met.

Step-Transaction Doctrine

One of the more complex issues that arises in electing QSub status is the potential application of the step-transaction doctrine. Prop. Regs. Sec. 1.1361-4(a)(2) provides that the steptransaction doctrine applies to QSubs. In addition, IRS officials have indicated that the step-transaction doctrine will apply to QSub elections that are part of an overall series of transactions.(6) An IRS official has stated that, if a QSub election is part of a larger transaction that includes, for example, an acquisition of stock immediately before the election, the tax consequences of the overall transaction will be analyzed under general principles of tax law, including the step-transaction doctrine.(7)

If the step-transaction doctrine did not apply to QSubs, electing or terminating QSub status would generally have no income tax ramifications. If QSub elections or terminations were treated as nonrecognition events, surrounding transfers or stock exchanges might not result in income tax liability. However, if the IRS applies the steptransaction doctrine, transactions surrounding a QSub election could be stepped together and result in a taxable event, a significant trap for the unwary.

For example, in the reshuffling of brother-sister S corporations into a parent-subsidiary group, the IRS has not specifically stated that such transaction will be treated as a D reorganization. Instead of a Sec. 351 contribution of the brother stock to the sister S corporation followed by a Sec. 332 liquidation, the IRS may recast this transaction as a D reorganization. If it does, Sec. 357(c) applies; gain would be recognized by the sister corporation to the extent that liabilities exceed the adjusted basis of transferred assets. Thus, care should be exercised as to which of the two corporations is contributed to the other to avoid Sec. 357(c).(8) Obviously, the entity with liabilities greater than basis should be the parent, all other things being equal.

In addition, the step-transaction doctrine may apply to the termination of QSub status. In Prop. Regs. Sec. 1.1361-5 (b) (3), Example 1, more than 20% of the QSub stock is transferred by the parent to a third party, terminating QSub status. The parent is treated as transferring the QSub's assets and liabilities to a new corporation in a transaction that does not satisfy Sec. 351, because the parent does not have control immediately after the transfer, leading to gain or loss on the transaction.

Transition Relief

In Prop. Regs. Sec. 1.1361-4(a)(5)(i), the IRS provided transitional relief from the step-transaction doctrine for QSub elections made until 60 days after the final regulations are issued. Such relief was provided specifically because taxpayers might make the QSub election without realizing that the doctrine applied.

The step-transaction should not apply to QSubs.(9) The SBJPA provisions were intended to facilitate the use of alternate S structures, and increase the alternatives available to small business owners. The application of the step-transaction doctrine would impede this goal by requiring such owners to obtain sophisticated tax advice before entering into transactions involving S corporations.

Internal Transactions

As was discussed, QSubs are disregarded entities. The parent is deemed to own all of the QSub'S assets for Federal income tax purposes; consequently, formal distributions from the QSub to the parent are not necessary. Loans between the parent and QSub are disregarded for tax purposes, but do have substance for legal purposes. Any money or property redistributed within the parent-QSub group does not run afoul of Sec. 311(b). Loaning money to a QSub is the same as loaning it to the parent for purposes of Sec. 1366(d). Contributions of cash or property by the parent to the QSub are nontaxable, because the funds have stayed within the entity. If a controlling (i.e., 80% or more) shareholder or group of shareholders of the parent contributed appreciated property to the QSub directly, Sec. 351 would apply to make the transaction tax-free (unless Sec. 357(b) or (c) applied), even though the shareholder has no direct ownership in the QSub.

Because the QSub is viewed as the parent's division, the parent can own a QSub through another QSub.

Example 2: S corporation X wholly owns corporation Y, and each owns 50% of corporation Z. X wants to make a QSub election for both Y and Z; the issue is whether X may do so even though it does not own 100% of Z. After X makes a QSub election for Y, the latter becomes a disregarded entity; all Y assets are deemed owned by X. Because X now owns all the Z stock, it can make a QSub election for Z.(10)

Further, a parent may choose the wholly owned entities for which it desires QSub status. Such flexibility makes it possible for the parent to choose the assets it wants in a disregarded entity subsidiary, and which assets and liabilities it wants protected in a C corporation subsidiary.

Example 3: S corporation Q is a holding company with multiple businesses. Q could shelter each of these businesses from creditors' reach in separate C subsidiaries or QSubs. Q can also put appreciated potential built-in gain assets into the C subsidiaries, allowing it to sell assets of the QSub (but stock of the C corporation) to future buyers, thereby minimizing Sec. 1374 tax exposure. Q could avoid the Sec. 1375 tax by maintaining a C subsidiary with high E&P attributes and electing QSub status for low E&P companies.

However, Q cannot break a chain of subsidiaries--if a C corporation is interspersed among the QSub subsidiaries, the lookthrough advantage is destroyed. If a lower-tier QSub is owned by an SMLLC (whose owner is a parent S corporation or higher-tier QSub), the chain will not be broken.

Payroll Tax Issues

Notice 99-6(11) offers guidance on payroll taxes for a disregarded entity. Payroll taxes can be handled in one of two ways. First, the parent may elect to calculate, report and pay all employment tax obligations for employees of its disregarded entity under the parent's name and taxpayer identification number (TIN). If this alternative is used, the QSub must file final payroll tax returns. Alternatively, the QSub may separately calculate, report and pay all employment taxes under its own name and TIN. Under this method, the QSub keeps its name, TIN, etc.; however, the parent is still ultimately liable for the payroll taxes. If a parent owns several disregarded entities, it may use the first option for some and the second option for others. This is particularly helpful if a new QSub is formed, because the first option may be administratively preferable; for an existing QSub, the second option may be simpler to use. The second option can be chosen on an annual basis; if the first option is used for a return period after April 20, 1999, its use is irrevocable.

State Conformity

An additional consideration in creating a QSub is state law. Some states (e.g., North Carolina) have indicated that they will ignore QSub elections.

Planning Opportunities

Many tax planning opportunities exist as a result of a QSub election. A QSub can be used to effectuate a Sec. 1031 or 1033 exchange when the parent does not want to own the property directly due to potential liability exposure.(12) For example, if an S corporation owned real estate that it wanted to exchange under Sec. 1031, the property to be received might have environmental liabilities. By using a QSub to exchange the properties, no liabilities inure to the parent. A similar result can be achieved by replacing Sec. 1033 property with similarly functioning property purchased by the QSub.

Similarly, an S corporation can form QSubs in a tax-free transaction, preserving one level of tax while using the QSub to segregate (1) the parent's natural business lines by function or (2) liabilities of one company from another. In addition, a parent with a risky business and a portfolio of investment assets could drop the risky business down into a wholly owned subsidiary and elect QSub status. For legal purposes, a separate subsidiary exists, but a single entity exists for tax purposes, with the parent holding the investment assets. The parent's investment assets are protected if the subsidiary is sued by creditors.

However, a potential problem is that it may be difficult to transfer the operating assets of a risky business to a new entity because of regulatory or transfer tax issues. Alternatively, the shareholders might form a holding company by contributing the stock of the existing corporation with the operating and investment assets to the holding company; the holding company would immediately elect S status. The operating subsidiary becomes the QSub. After the deemed liquidation, the QSub transfers the investment assets up to the parent. The dividends on the investments are non-events for Federal income tax purposes; Sec. 311 would not apply. The tax adviser should be aware of the fraudulent conveyance rules when using these planning techniques.

More Than One Class of Stock

The proposed regulations do not bar QSubs from having more than one class of stock. The QSub could have both common and preferred shares authorized and outstanding; however, the parent must own 100% of the QSub. Phantom stock options, stock appreciation rights and other stock options not viewed as outstanding under the proposed regulations could be available for QSub employees and independent contractors.

Restructuring and Basis

The proposed regulations facilitate the restructuring of brother-sister S corporations.

Example 4: Individual shareholder A wholly owns two S corporations, X and Y, and wants them to be treated as one corporation for Federal tax purposes. A could contribute the Y stock to X. This temporarily creates a parent-subsidiary group in which there is an S parent (X) and an S subsidiary (Y). Prop. Regs. Sec. 1.1361-4(a)(5)(ii), Example 2, clarifies that Y's S election would not terminate because it has a corporate shareholder. If the effective date of the QSub election is the transfer date of the subsidiary's (Y's) stock, the momentary ownership of Y by X will be disregarded. Immediately after the contribution of the Y stock, Y will be deemed to liquidate into X under Sec. 332.

The parent-subsidiary grouping may also allow additional losses to be taken under Sec. 1366(d), because the adjusted basis in both corporations is now the adjusted basis in the parent. Thus, if L Corp. was a loss company and M Corp. was profitable, the adjusted basis due to past undistributed profits could be used to offset suspended losses generated by L. The separate return limitation year rules would not apply to these transactions, because consolidated returns are not allowed.

Use of QSubs in Spinoffs

If properly structured, a parent may spin off its QSub through a distribution of the QSub stock' to its shareholders; the parent and shareholders would not incur any tax. If this division does not comply with Sec. 355, the use of a parent S group would cause only one level of tax. After the spinoff, the QSub will be allowed to elect S status, assuming it otherwise qualifies. If the QSub has always been a QSub, no Sec. 1374 tax, Sec. 1375 tax, LIFO recapture tax, etc. would apply. Also, because the QSub was never a C corporation, it can elect S status without waiting five years.

An interesting aspect of spinning off a QSub to the parent's shareholders is how to account for suspended losses. Prop. Regs. Sec. 1.1361-5(b)(2) requires an allocation of suspended losses between the two corporations based on the relative FMVs of their stock. If the QSub is not an S corporation after the spinoff the shareholders may potentially lose the benefit of these allocated suspended losses. On the other hand, when a profitable QSub is spun off, allocation of suspended losses to that corporation is allowed. Thus, these losses may be used in a potentially more favorable manner.

Peracchi

One way to remedy the potential gain recognition problem when QSub liabilities exceed basis was highlighted in Peracchi.(13) In that case, the Ninth Circuit held that if the taxpayer contributed his own notes to his wholly owned C corporation, the face amount of such notes constituted additional asset basis for Sec. 357(c) purposes, because the transferor was solvent with sufficient net worth. Further, because there was a valid promissory note, the transferor could get full face value basis for the note.

However, the Ninth Circuit stated in footnote 16 of the opinion that this result does not apply to a transfer to an S corporation. It is unclear whether this refers to Sec. 1366(d) limitations or is meant to exclude S corporation Sec. 351 transactions as well. It seems that the footnote is alluding to Sec. 1366(d), because there are long-standing rulings that basis is not created for Sec. 1366(d) purposes through the contribution of one's own note. Also, Secs. 351 and 357 have always applied to both C and S corporations.

Comparison to SMLLCs

QSubs and SMLLCs are two types of disregarded entities; each has relative advantages and disadvantages. An advantage of the SMLLC is that it probably be less expensive and more flexible than a QSub. As described above, gain recognition may result on QSub election or termination. This possibility of gain recognition generally does not exist with an LLC. Also, Sec. 357(c) is stricter than Sec. 741 when liabilities exceed basis.

In addition, admitting another member to an SMLLC will generally have fewer adverse tax consequences than admitting another shareholder to a QSub. On admission of another shareholder to the QSub, the QSub election terminates; the QSub becomes a C corporation. In contrast, on admission of another member to the LLC, the LLC becomes a partnership and loses its disregarded entity status for Federal tax purposes.

Advantages of the QSub entity, however, include the fact that an S corporation may use Secs. 355 and 368(a)(1)(D) to distribute the stock of the QSub via a tax-free spinoff. The distribution by an S corporation of an LLC interest is generally taxable under Sec. 311.

In addition, an S corporation may make a QSub election for a subsidiary engaged in a banking activity, thus receiving the benefit of flowthrough taxation. However, an LLC will be taxed as a corporation, ending any flowthrough tax benefits, if it is engaged in a banking activity with deposits ensured under Federal statutes (e.g., Federal Deposit Insurance Corporation).

Conclusion

When finalized, the proposed regulations will provide many opportunities and traps for the tax adviser forming, operating or terminating a QSub. This article has attempted to alert readers to potential pitfalls and opportunities of using a QSub. Choices as to payroll tax reporting, correcting errors in filing QSub elections without cost, using QSubs to minimize built-in gains tax and avoiding the step-transaction doctrine have all been highlighted.

(1) Ineligible corporations include the following under Sec. 1361(b)(2): (1) a financial institution that uses the Sec. 585 reserve method of accounting for bad debts; (2) an insurance company; (3) a corporation to which a Sec. 936 election applies; and (4) a domestic international sales corporation (DISC) or former DISC.

(2) REG-251698-96 (4/22/98). In general, these regulations will be effective on the issuance of the final regulations.

(3) Notice 97-4, 1997-1 CB 351.

(4) Rev. Proc. 98-55, IRB 1998-46, 27, amplifying and superseding Rev. Procs. 94-23, 1994-1 CB 609 and 97-40, IRB 1997-33, 50.

(5) This depends, of course, on the surrounding transaction of which the election is a part. For example, if the step-transaction doctrine applied, a taxable event might have occurred.

(6) See 98 TNT 108-6.

(7) Lee A. Dean, IRS Office of Assistant Chief Counsel (Corporate).

(8) See Rev. Rul. 75-161, 1975-1 CB 114.

(9) See New York State Bar Ass'n, Proposed Regulations Concerning Qualified Subchapter S Subsidiaries (recommending that the step-transaction doctrine be limited in its application to QSub elections).

(10) Prop. Regs. Sec. 1.1361-2(c), Example (3); Prop. Regs. Sec. 1.1361-4(a)(1)(ii).

(11) Notice 99-6, IRB 1999-3, 12.

(12) See, e.g., IRS Letter Rulings 9807013 (11/13/97) and 9909054 (12/3/98).

(13) Donald J. Peracchi (9th Cir. 1998) (81 AFTR2d 98-1754, 98-1 USTC [paragraph] 50,374), rev'g and rem'g TC Memo 1996-191.