Let's Talk Tax Inversions - Part One

You may have read recently that Burger King is acquiring Tim Hortons Inc, a Canadian coffee and donut chain. What has attracted attention is the deal is structured as an inversion, which means that the American company (Burger King) will be moving its tax residency to Canada. I suppose it was hypothetically possible that the deal could have moved Tim Hortons Inc to the U.S. (think of it as a reverse inversion), but that would not have drawn the attention of the politicians.

The combined company will be the world’s third-largest fast-food company, right behind McDonalds and Yum! Brands (think KFC and Taco Bell). While the U.S. will have by far the largest number of locations, the majority of the revenue – again by far – will be from Canada.

An issue at play is that U.S. companies face a very harsh tax system, one in which they are to pay U.S. tax on all profits, even if those profits originated overseas and may never be returned to the U.S. Combine that with the world’s highest corporate tax rate, and it becomes fairly easy to understand why companies pursue inversions. In certain industries (such as pharmaceuticals), it is virtually imperative that the some part of the company be organized overseas, as the default tax consequences would be so prohibitive as to likely render the company uncompetitive.

Let’s talk a bit about inversions.

Inversions first received significant Congressional scrutiny in the 1980s, when McDermott Inc did the following:

·        McDermott organized a foreign subsidiary, treated as a controlled foreign corporation for U.S. tax;

·        The subsidiary issued stock in exchange for all the outstanding stock of McDermott itself; and          

·        Thus McDermott and its subsidiary traded places, with the subsidiary becoming the parent.

In response Congress passed IRC Sec 1248(i), requiring any future McDermott to report dividend income – and pay tax – on all of its subsidiary’s earnings and profits (that is, its undistributed profits).

In the 1990s, Helen of Troy Corp had its shareholders exchange their stock for stock of a new foreign parent company.

In response the IRS issued Reg 1.367(a)-3(c), requiring the U.S. shareholders to be taxable on the exchange because they owned more than 50% of the foreign company after the deal was done.

In the aughts, Valeant Pharmaceuticals paid a special dividend to its shareholders immediately before being acquired by Biovail, a Canadian corporation. Valeant paid out so much money - thereby reducing its own value - that the Valeant shareholders owned less than 50% of the foreign company.

Interesting enough, this did not (to the best of my knowledge) draw a government response. There is a “stuffing” rule, which prohibits making the foreign corporation larger. There is no “thinning” rule, however, prohibiting making the U.S. company thinner.

Then there was a new breed of inversions. Cooper Industries, Nabors Industries, Weatherford International and Seagate Technologies did what are called “naked” inversions. The new foreign parent incorporated in the Cayman Islands or Bermuda, and there was no effort to pretend that the parent was going to conduct significant business there. The tax reason for the transaction was stripped for all to see – that is, “naked.”

That was a bridge too far.

Congress passed IRC Sec 7874, truly one of the most misbegotten sections in the tax Code. Individually the words make sense, but combine them and one is speaking gibberish.

Let’s break down Section 7874 into something workable. We will split it into three pieces:

(1)  The foreign company has to acquire substantially all the assets of a domestic company. We can understand that requirement.

(2)  The U.S. shareholders (referred to “legacy” shareholders) own 60% or more of the foreign parent. There are three sub-tiers:

a.     If the legacy shareholders own at least 80%, the IRS will simply declare that nothing occurred and will tax the foreign company as if it were a U.S. company;

b.     If the legacy shareholders own at least 60% but less than 80%, the IRS would continue to tax the foreign company on its “inversion gain” for 10 years.

                                                              i.      What is an “inversion gain?” It involves using assets (think licenses, for example) to allow pre-inversion U.S. tax attributes to reduce post-inversion U.S. tax. The classic tax attribute is a net operating loss carryover.

c.      If the legacy shareholders own less than 60%, then Section 7874 does not apply. The new foreign parent will generally be respected for U.S. tax purposes.

But wait! There is a trump card.

(3)  The IRS will back off altogether if the foreign company has “substantial business presence” in the new parent’s country of incorporation.

There is something about a trump card, whether one is playing bridge or euchre or structuring a business transaction. The tax planners wanted a definition. Initially the IRS said that “substantial business presence” meant 10% of assets, sales and employees. It later changed its mind and said that 10% was not enough. It did not say what would be enough, however. It said it would decide such issues on “facts and circumstances.” This sounds acceptable, but to a tax planner it is not. It is the equivalent of saying that one need not stop at a stop sign, as long as one is not “interfering” with traffic. What does that mean, especially when one has family in the car and is wondering if the other driver has any intention of stopping?

After three years the IRS said that it thought 25% was just about right. Oh, and forget about any “facts and circumstances,” as the IRS did not want to hear about it.

The 25% test was a cynical threshold, figuring that no one country – other than the U.S. – could possibly reach 25% by itself. Even the E.U. market – which could rival the U.S. – is comprised of many individual countries, making it unlikely (barring Germany, I suppose) that any one country could reach 25%.

Until Pfizer attempted to acquire AstraZeneca, a U.K. based company. The White House then proposed reducing the 80% test to a greater-than-50% test and eliminating the 60% test altogether. It also wanted to eliminate any threshold test if the foreign corporation is primarily managed from the United States.

The Pfizer deal fell through, however, and there no expectation that this White House proposal will find any traction in Congress.

And there is our short walk through the minefield of tax inversions.

There is one more thing, though. You may be wondering if the corporate officers and directors are impacted by the tax Code. Surely you jest- of course they are! There is a 15% excise tax on their stock-based compensation. How does this work out in the real world? We will talk about this in our next blog, when we will discuss the Medtronic – Covidien merger. 

Beer, Pepsi, A Cincinnati Family And The Estate Tax

I am reviewing a tax case involving estate taxes, generation-skipping taxes, a Cincinnati family, and a beer brand only recently brought back to the market. Let’s talk about it.

John F. Koons (Koons) owned shares that his father had bought during the 1930s in Burger Brewing Co., a Cincinnati brewer known for its Burger beer. The Cincinnati Reds broadcaster Waite Hoyt nicknamed a deck at Crosley Field (where the Reds then played) “Burgerville.” 

During the 1960s the company began bottling and distributing Pepsi soft drinks. In the 1970s it left the beer business altogether. The company changed its name to Central Investment Corp (CIC), and Koons was its largest shareholder.

In the late 1990s Koons got into litigation with PepsiCo. By 2004 PepsiCo suggested that the litigation could be resolved if CIC sold its soft drink business and left the Pepsi-Cola system. 

In July, 2004 Koons revised his will to leave the residue of his estate to a Revocable Trust.

In August, 2004 Koons set-up Central Investments LLC (CI LLC) to receive all the non-PepsiCo assets of CIC.   

In December, 2004 Koons and the Koons children executed a stock purchase agreement with PepsiCo. Koons owned 46.9% of the voting stock and 51.5% of the nonvoting stock of CIC.

The deal was sweet. PepsiCo paid $50 million to settle the lawsuit as well as $340 million, plus a working capital adjustment, for the shares of CIC.

There was a kicker in here though: the children’s agreement to sell their CIC shares was contingent on their also being redeemed from CI LLC. It appears that CI LLC was going to be professionally managed, and the children were being given an exit.

In January, 2005 CI LLC distributed approximately $100 million to Koons and the children.

By the end of January two of the four Koons children decided to accept the buyout offer.

In February, 2005 Koons amended the Revocable Trust. He removed the children, leaving only the grandchildren. He then contributed his interest in CI LLC to the Trust.

NOTE: A couple of things happened here. First, the trust is now a generation-skipping trust, as all the beneficiaries in the first generation have been removed. You may recall that there is a separate generation-skipping tax. Second, Koons’ interest in CI LLC went up when the two children agreed to the buyout. Why? Because he still owned the same number of shares, but the total shares outstanding would decrease pursuant to the redemption.      

Koons – who would soon own more than 50% of CI LLC - instructed the trustees to vote in favor of changes to CI LLC’s operating agreement. This prompted child number 2 – James B. Koons – to write a letter to his father. Son complained that the terms of the buyout “felt punitive” but thanked him for the “exit vehicle.” He told his dad that the children would “like to be gone.”

Sure enough, the remaining two children accepted the buyout.

On March 3, 2005 Koons died.

The buyouts were completed by April 30, 2005. The Trust now owned more than 70% of CI LLC.

And the Koons estate had taxes coming up.

CI LLC agreed to loan the Trust $10,750,000 to help pay the taxes. The note carried 9.5% interest, with the first payment deferred until 2024. The loan terms prohibited prepayment.

OBSERVATION: That’s odd.

The estate tax return showed a value over $117 million for the Trust.

The estate tax return also showed a liability for the CI LLC loan (including interest) of over $71 million.

And there you have the tax planning! This is known as a “Graegin” loan.

NOTE: Graegin was a 1988 case where the Court allowed an estate to borrow and pay interest to a corporation in which the decedent had been a significant shareholder.

Did it work for the Koons estate?

The IRS did not like a loan whose payments were delayed almost 20 years. The IRS also argued that administration expenses deductible against the estate are limited to expenses actually and necessarily incurred in the administration.  The key term here is “necessary.”

Expenditures not essential to the proper settlement of the estate, but incurred for the individual benefit of the heirs, legatees, or devisees, may not be taken as deductions.”

The estate argued that it had less than $20 million in cash to pay taxes totaling $26 million. It had to borrow.

You have to admit, the estate had a point.

The IRS fired back: the estate controlled the Trust. The Trust could force CI LLC to distribute cash. CI LLC was sitting on over $300 million.

The estate argued that it did not want to deplete CI LLC’s cash.

The Court wasn’t buying this argument. It pointed out that the estate depleted CI LLC’s cash by borrowing. What was the difference?

Oh, oh. There goes that $71 million deduction on the estate tax return.

It gets worse. The IRS challenged the value of the Trust on the estate tax return.  The Trust owned over 70% of CI LLC, so the real issue was how to value CI LLC.

The estate’s expert pointed out that the Trust owned 46.9% of CI LLC at the time of death. There would be no control premium, although there would be a marketability discount. The expert determined that CI LLC’s value for tax purposes should be discounted almost 32%.

The IRS expert came in at 7.5%. He pointed out that – at the time of death – it was reasonably possible that the redemptions of the four children would occur. This put the Trust’s ownership over 50%, the normal threshold for control.

Here is the Court:

The redemption offers were binding contracts by the time Koons died on March 3, 2005. CI LLC had made written offers to each of the children to redeem their interests in CI LLC by February 27, 2005. Once signed, the offer letters required the children to sell their interests ....

Any increase in the value of CI LLC would increase the generation-skipping tax to the Trust. 

Any increase in the value of the Trust would increase the estate tax to the estate.

The tax damage when all was said and done? Almost $59 million.

Given the dollars involved, the estate has almost no choice but to appeal. It does have difficult facts, however. From a tax planner’s perspective, it would have been preferable to keep the Trust from owning more than 50% of CI LLC. Too late for that however.