F Reorganization PDF Print E-mail
Protection Business Assets Through Reorganizations

Often business owners want to segregate the good assets from potential adverse liabilities.  In the formation of a new business this can be easily plan for. The challenge is when there was no initial planning and the business is now successful.  The problem is that separating the good from bad assets can have possible adverse tax consequences.  Is there any that can be done?  Yes according to the IRS in certain situations.

In a recent article dealing the reorganizations by Alan S. Gassman, Kenneth J. Crotty, and Michael O'leary the authors discussed some attractive new opportunities in this area. As disregarded entity planning has advanced, the IRS has affirmed by private letter ruling that IRC Section 368(a)(1)(F) will allow what may be call the “New Parent F Reorganization” on a tax-free basis. The New Parent F Reorganization gives the tax planner several new tax-free structure adaptations that can be used to help segregate liabilities from entity assets that may be used in a business. Until recently, appreciated assets had been considered “trapped” within the corporation due to adverse federal tax consequences.

Traditional F reorganizations. One of the most common uses of F reorganizations is the reincorporation of an “Old Corporation,” (hereinafter “OldCo”), into a “New Corporation,” (hereinafter “NewCo”). This reincorporation can occur in the same state or in a new state. F reorganizations have also been used by corporations that are undergoing a change in structure, such as amendments to corporate charters or a change of the corporation's name.  A third common use of F reorganizations is a change of business organization, such as when a regular corporation taxed as an S corporation converts into a limited liability company taxed as an S corporation, or when a corporation changes from a mutual savings and loan association to a stock savings and loan, or when a corporation changes from a business trust to a corporation.

I have often encouraged businesses that are taxed as S Corporations to convert to an LLC for additional asset protection purposes. The reasons are generally two fold.  One is for better asset protection from an outside creditor so they will not be able to vote a shareholder’s share of stock, if the creditor is able to levy on the stock. The second reason is less record keeping requirements such as annual meetings. The use of the F reorganization in the context of the merger of an S corporation into a limited liability company (“LLC”) is becoming increasingly popular.

Possible Tax Traps. Before the New Parent F Reorganization became feasible, a tax planner would usually have to explain to a business owner that the transfer of an appreciated asset from an S corporation or a C corporation would trigger income tax as if the asset were sold. The difference between the fair market value of the asset transferred and the tax basis of that asset would be treated as taxable income. With a C corporation, this would result in a corporate-level tax. With an S corporation that has always been an S corporation, or has been an S corporation for at least ten years, this would result in one level of tax. For an asset that was held by a former C corporation before an S election is made where the transfer occurred less than ten years after such election, there can be a tax at both the corporate level and at the individual level. 
New Parent F Reorganization. Previously, many tax planners believed that OldCo would need to transfer all its assets and liabilities to NewCo in order for the reorganization to qualify as an F reorganization. Practitioners believed that if any assets were retained by OldCo, the transaction would not qualify as an F reorganization because there was more than a mere change in the identity, form, or place of organization of the corporation. This belief was incorrect, however, in situations where OldCo is “deemed” to liquidate into New Parent Company. When OldCo is deemed to liquidate into New Parent Company during the reorganization, some of the assets may be retained by OldCo. This creates a planning opportunity whereby future liabilities can be segregated from valuable assets while operating entities can continue with their historical taxpayer identification numbers and identities.

In Ltr. Rul. 200701017 , the Service concluded that an F reorganization occurred even though the assets of OldCo were split between OldCo and New Parent Company as a result of the reorganization. The shareholder of OldCo had decided for business purposes that the assets of OldCo should be split between two separate state law entities which would be treated as one entity for federal income tax purposes. To accomplish this objective, critical steps were taken at various stages in the planning:

Example. A family-owned plumbing company provides retail plumbing services to homeowners and businesses with existing issues, and owns a fleet of vans used to provide such services. The company also owns and operates a construction services division which provides plumbing installation for new buildings and for building renovation. The renovation and construction associated division operates with larger trucks and separate personnel.

Both divisions are located in a building that has separate entrances and separate signage for each division. The building, vans, trucks, equipment, and inventory are all owned and operated by this single company, an S corporation. Recently, the family has become concerned that one of the vans may be in an accident, causing serious injury to a creditor. The family would like to structure the assets owned by the plumbing company in such a manner so that the creditor exposure could be minimized.

Solution. A New Parent S Corporation is established, and the stock of the historical operating entity is transferred thereto. The retail plumbing operation remains under the historical operating entity, with its inventory and four of the 19 vans. The other 15 vans are transferred to a newly established, separate LLC owned by the New Parent S Corporation. The trucks are transferred to a separate LLC that is also a subsidiary of the New Parent S Corporation, and the construction division is transferred to another separate LLC that is also a subsidiary of the New Parent S Corporation. The value of the historical entity thereby is reduced to the value of the inventory, the four vans, and the goodwill of that portion of the business.


 

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