Passive Accruals and Deferrals for Earnings from Cross-Border Leasing and Leasing Back of Capital Assets
Senate of Finance Berlin, Tax Guidelines from April 22, 1999, III A 13 - S 2170 - 2/97
There have been cases where a taxpayer residing in Germany has granted a long-term
lease for a fixed asset owned and financed by said taxpayer to an investor residing in the U.S. to immediately lease the fixed asset back from the investor for a shorter lease term. In addition, the taxpayer was granted the option to buy back the lease contract rights of the U.S. investor after the lease back contract expired with the result of being able to conclude the entire transaction at this point in time.
The remuneration for the rental by the U.S investor, the remuneration for the lease back by the taxpayer and the option remuneration of the respective obligator are (at the present value) paid at once. As a result, the taxpayer receives a so-called present value benefit from the transaction, which is especially caused by the utilization of U.S. tax rules by the U.S investor.
The rights and duties resulting from the lease and back lease contracts basically mirror one another. The contract parties assume that the transaction does not change the legal ownership of the assets and that the U.S. investor does not become the economic owner of the assets either.
The result of a discussion on the level of the federal government and the states, these sets of agreements are not to be viewed as lease and lease back contracts but rather as one sui generis contract. According to the set of agreements, the contract partner from the Germany receives the so-called present value benefit (at the same time as well) at the time when all contracts are settled simultaneously.
This present value benefit is to be viewed as an immediately taxable income and cannot be collected over time, spread out across the time span of the "back lease contract" within the framework of an accruals and deferrals item. The obligation to pay future indemnity in certain cases, if applicable, also does not represent a (partial) repayment of the collected so-called present value benefit and cannot be a reason to post any collected remuneration in an accruals and deferrals item.
Sonntag, Oktober 31, 1999
Dienstag, Oktober 05, 1999
IRS Revenue Ruling 1999-14
Business expenses; interest; lease-in/lease-out transactions. A
taxpayer may not deduct, under sections 162 and 163 of the Code, rent and
interest paid or incurred in connection with a lease-in/lease-out (LILO)
transaction that lacks economic substance.
REV. RUL. 99-14
ISSUE
May a taxpayer deduct, under sections 162 and 163 of the Internal
Revenue Code, rent and interest paid or incurred in connection with a
"lease-in/lease-out" ("LILO") transaction?
FACTS
X is a U.S. corporation. FM is a foreign municipality that has
historically owned and used certain property having a remaining useful
life of 50 years and a fair market value of $100 million. BK1 and BK2 are
banks. None of the parties is related.
On January 1, 1997, X and FM entered into a LILO transaction under
which FM leased the property to X under a "Headlease," and X immediately
leased the property back to FM under a "Sublease." The term of the
Headlease is 34 years. The "primary" term of the Sublease is 20 years.
Moreover, as described below, the Sublease may also have a "put renewal"
term of 10 years.
The Headlease requires X to make two rental payments to FM during its
34-year term: (1) an $89 million "prepayment" at the beginning of year 1;
and (2) a "postpayment" at the end of year 34 that has a discounted
present value of $8 million. For federal income tax purposes, X and FM
allocate the prepayment ratably to the first 6 years of the Headlease and
the future value of the postpayment ratably to the remaining 28 years of
the Headlease.
The Sublease requires FM to make fixed, annual rental payments over
both the primary term and, if exercised, the put renewal term. The fixed,
annual payments during the put renewal term are substantially higher than
those for the primary term. Nevertheless, the fixed, annual payments
during the put renewal term are projected (as of January 1, 1997) to equal
only 90 percent of the fair market value rental amounts for that term.
At the end of the Sublease primary term, FM has a "fixed-payment
option" to purchase from X the Headlease residual (the right to use the
property beyond the Sublease primary term subject to the obligation to
make the rent postpayment) for a fixed amount that is projected (as of
January 1, 1997) to be equal to the fair market value of the Headlease
residual. If FM exercises the option, the transaction is terminated at
that point and X is not required to make any portion of the postpayment
due under the Headlease. If FM does not exercise the option, X may elect
to (1) use the property itself for the remaining term of the Headlease,
(2) lease the property to another person for the remaining term of the
Headlease, or (3) compel FM to lease the property for the 10-year put
renewal term of the Sublease. If FM does not exercise the fixed-payment
option and X exercises its put renewal option, X can require FM to
purchase a letter of credit guaranteeing the put renewal rents. If FM does
not obtain the letter of credit, FM must exercise the fixed-payment
option.
To partially fund the $89 million Headlease prepayment, X borrows $54
million from BK1 and $6 million from BK2. Both loans are nonrecourse, have
fixed interest rates, and provide for annual debt service payments that
fully amortize the loans over the 20-year primary term of the Sublease.
The amount and timing of the debt service payments mirror the amount and
timing of the Sublease payments due during the primary term of the
Sublease.
Upon receiving the $89 million Headlease prepayment, FM deposits $54
million into a deposit account with an affiliate of BK1 and $6 million
into a deposit account with an affiliate of BK2. The deposits with the
affiliates of BK1 and BK2 earn interest at the same rates as the loans
from BK1 and BK2. FM directs the affiliate of BK1 to pay BK1 annual
amounts equal to 90 percent of FM's annual rent obligation under the
Sublease (that is, amounts sufficient to satisfy X's debt service
obligation to BK1). The parties treat these amounts as having been paid
from the affiliate to FM, then from FM to X as rental payments, and
finally from X to BK1 as debt service payments. In addition, FM pledges
the deposit account to X as security for FM's obligations under the
Sublease, while X, in turn, pledges its interest in FM's pledge to BK1 as
security for X's obligations under the loan from BK1. Similarly, FM
directs the affiliate of BK2 to pay BK2 annual amounts equal to 10 percent
of FM's annual rent obligation under the Sublease (that is, amounts
sufficient to satisfy X's debt service obligation to BK2). The parties
treat these amounts as having been paid from the affiliate to FM, then
from FM to X as rental payments, and finally from X to BK2 as debt service
payments. Although this deposit account is not pledged, the parties
understand that FM will use the account to pay the remaining 10 percent of
FM's annual rent obligation under the Sublease.
X requires FM to invest $15 million of the Headlease prepayment in
highly-rated debt securities that will mature in an amount sufficient to
fund the fixed amount due under the fixed-payment option, and to pledge
these debt securities to X. Having economically defeased both its rental
obligations under the Sublease and its fixed payment under the
fixed-payment option, FM keeps the remaining portion of the Headlease
prepayment as its return on the transaction.
For tax purposes, X claims deductions for interest on the loans and for
the allocated rents on the Headlease. X includes in gross income the rents
received on the Sublease and, if and when exercised, the payment received
on the fixed payment option. By accounting for each element of the
transaction separately, X purports to generate a stream of substantial net
deductions in the early years of the transaction followed by net income
inclusions on or after the conclusion of the Sublease primary term. As a
result, X anticipates a substantial net after-tax return from the
transaction. X also anticipates a positive pre-tax economic return from
the transaction. However, this pre-tax return is insignificant in relation
to the net after-tax return.
LAW AND ANALYSIS
In general, a transaction will be respected for tax purposes if it has
"economic substance which is compelled or encouraged by business or
regulatory realities, is imbued with tax-independent considerations, and
is not shaped solely by tax-avoidance features that have meaningless
labels attached." Frank Lyon Co. v. United States, 435 U.S. 561, 583-84
(1978); James v. Commissioner, 899 F.2d 905, 908-09 (10th Cir. 1990). In
assessing the economic substance of a transaction, a key factor is whether
the transaction has any practical economic effect other than the creation
of tax losses. Courts have refused to recognize the tax consequences of a
transaction that does not appreciably affect the taxpayer's beneficial
interest except to reduce tax. The presence of an insignificant pre-tax
profit is not enough to provide a transaction with sufficient economic
substance to be respected for tax purposes. Knetsch v. United States, 364
U.S. 361, 366 (1960); ACM Partnership v. Commissioner, 157 F.3d 231, 248
(3d Cir. 1998); Sheldon v. Commissioner, 94 T.C. 738, 768 (1990).
In determining whether a transaction has sufficient economic substance
to be respected for tax purposes, courts have recognized that offsetting
legal obligations, or circular cash flows, may effectively eliminate any
real economic significance of the transaction. For example, in Knetsch,
the taxpayer purchased an annuity bond using nonrecourse financing.
However, the taxpayer repeatedly borrowed against increases in the cash
value of the bond. Thus, the bond and the taxpayer's borrowings
constituted offsetting obligations. As a result, the taxpayer could never
derive any significant benefit from the bond. The Supreme Court found the
transaction to be a sham, as it produced no significant economic effect
and had been structured only to provide the taxpayer with interest
deductions.
In Sheldon, the Tax Court denied the taxpayer the purported tax
benefits of a series of Treasury bill sale-repurchase transactions because
they lacked economic substance. In the transactions, the taxpayer bought
Treasury bills that matured shortly after the end of the tax year and
funded the purchase by borrowing against the Treasury bills. The taxpayer
accrued the majority of its interest deduction on the borrowings in the
first year while deferring the inclusion of its economically offsetting
interest income from the Treasury bills until the second year. The
transactions lacked economic substance because the economic consequences
of holding the Treasury bills were largely offset by the economic cost of
the borrowings. The taxpayer was denied the tax benefit of the
transactions because the real economic impact of the transactions was
"infinitesimally nominal and vastly insignificant when considered in
comparison with the claimed deductions." Sheldon at 769.
In ACM Partnership, the taxpayer entered into a near-simultaneous
purchase and sale of debt instruments. Taken together, the purchase and
sale "had only nominal, incidental effects on [the taxpayer's] net
economic position." ACM Partnership at 250. The taxpayer claimed that,
despite the minimal net economic effect, the transaction had a large tax
effect resulting from the application of the installment sale rules to the
sale. The court held that transactions that do not "appreciably" affect a
taxpayer's beneficial interest, except to reduce tax, are devoid of
substance and are not respected for tax purposes. ACM Partnership at 248.
The court denied the taxpayer the purported tax benefits of the
transaction because the transaction lacked any significant economic
consequences other than the creation of tax benefits.
Viewed as a whole, the objective facts of the LILO transaction indicate
that the transaction lacks the potential for any significant economic
consequences other than the creation of tax benefits. During the 20-year
primary term of the Sublease, X's obligation to make the property
available under the Sublease is completely offset by X's right to use the
property under the Headlease. X's obligation to make debt service payments
on the loans from BK1 and BK2 is completely offset by X's right to receive
Sublease rentals from FM. Moreover, X's exposure to the risk that FM will
not make the rent payments is further limited by the arrangements with the
affiliates of BK1 and BK2. In the case of the loan from BK1, X's economic
risk is completely eliminated through the defeasance arrangement. In the
case of the smaller loan from BK2, X's economic risk, although not
completely eliminated, is substantially reduced through the deposit
arrangement. As a result, neither bank requires an independent source of
funds to make the loans, or bears significant risk of nonpayment. In
short, during the Sublease primary term, the offsetting and circular
nature of the obligations eliminate any significant economic consequences
of the transaction.
At the end of the 20-year Sublease primary term, X will have either the
proceeds of the fixed-payment option or a Headlease residual that has a
fair market value approximately equal to the proceeds of the fixed payment
option. If, at the end of the 20-year Sublease primary term, the Headlease
residual is worth more than the payment required on the fixed-payment
option, FM will capture this excess value by exercising the fixed payment
option, leaving X with only the proceeds of the option. Conversely, if, at
the end of the 20-year Sublease primary term, the Headlease residual is
worth significantly less than the payment required on the fixed-payment
option, X will put the property back to FM under the put renewal option at
rents, that while initially projected to be at only 90 percent of
estimated fair market value, are (because of the decline in the value of
the property) greater than fair market value. Thus, the fixed payment
option and put renewal option operate to "collar" the value of the
Headlease residual during the primary term, limiting much of the economic
consequence of the Headlease residual.
In addition, facts indicate that there is little economic consequence
from X's nominal exposure to FM's credit under the fixed-payment option
and, if exercised, the put renewal term. At the inception of the
transaction, FM was required to use a portion of the Headlease prepayment
to purchase highly-rated debt securities that were pledged to X ensuring
FM's ability to make the payment under the fixed-payment option. If FM
does not exercise the fixed-payment option and X exercises the put renewal
option, X can require FM to purchase a letter of credit guaranteeing FM's
obligation to make the put renewal rent payments. If FM does not obtain
the letter of credit, FM must exercise the fixed-payment option. Thus, as
a practical matter, the transaction is structured so that X is never
subject to FM's credit.
The conclusion that X is insulated from any significant economic
consequence of the Headlease residual is further supported by several
factors indicating that the parties expect FM to exercise the
fixed-payment option. First, FM has historically used the property.
Second, because the fixed payment obligation is fully defeased, FM need
not draw on other sources of capital to exercise the option. However, if
FM does not exercise the fixed payment option and X exercises the put
renewal option, FM would be required to draw on other sources of capital
to satisfy its put renewal rental obligations.
In sum, the LILO transaction lacks the potential for significant
economic consequences other than the creation of tax benefits. During the
primary term of the Sublease, X's obligations to provide property are
completely offset by its right to use property. X's obligations to make
debt service payments on the loans are completely offset by X's right to
receive rent on the Sublease. These cash flows are further assured by the
deposit arrangements with the affiliates of BK1 and BK2. Finally, X's
economic exposure to the Headlease residual is rendered insignificant by
the option structure and the pledge of the securities that defeases FM's
option payment. Thus, the only real economic consequence of the LILO
transaction during the 20-year primary term of the Sublease is X's pre-tax
return. This pre-tax return is too insignificant, when compared to X's
after-tax yield, to support a finding that the transaction has significant
economic consequences other than the creation of tax benefits.
Some of the features of the LILO transaction discussed above are
present in transactions that the Service will respect for federal income
tax purposes. For example, an arrangement for "in-substance defeasance" of
an outstanding debt was respected in Rev. Rul. 85-42, 1985-1 C.B. 36. By
contrast, in the LILO transaction, the deposit arrangement exists from the
inception of the transaction, eliminating any need by BK1 and BK2 for an
independent source of funds. Similarly, other features of the LILO
transaction, such as nonrecourse financing and fixed-payment options, are
respected in other contexts. However, when these and other features are
viewed as a whole in the context of the LILO transaction, these features
indicate the transaction should not be respected for tax purposes.
As a result of the transaction lacking economic substance, X may not
deduct interest or rent paid or incurred in connection with the
transaction.
The Service will scrutinize LILO transactions for lack of economic
substance and/or, in appropriate cases, recharacterize transactions for
federal income tax purposes based on their substance. See, e.g., Gregory
v. Helvering 293 U.S. 495 (1935), Bussing v. Commissioner, 88 T.C. 449
(1987), Supplemental Opinion, 89 T.C. 1050 (1987). Use of terms such as
"loan," "lease," "Headlease," and "Sublease" in this revenue ruling should
not be interpreted to indicate the Service's acceptance of X's
characterization of the LILO transaction described above.
HOLDING
A taxpayer may not deduct, under sections 162 and 163, rent and
interest paid or incurred in connection with a LILO transaction that lacks
economic substance.
EFFECT ON OTHER DOCUMENTS
Rev. Rul. 85-42 is distinguished.
DRAFTING INFORMATION
The principal author of this revenue ruling is John Aramburu of the
Office of Assistant Chief Counsel (Income Tax and Accounting). For further
information regarding this revenue ruling contact Mr. Aramburu on (202)
622-4960 (not a toll-free call).
taxpayer may not deduct, under sections 162 and 163 of the Code, rent and
interest paid or incurred in connection with a lease-in/lease-out (LILO)
transaction that lacks economic substance.
REV. RUL. 99-14
ISSUE
May a taxpayer deduct, under sections 162 and 163 of the Internal
Revenue Code, rent and interest paid or incurred in connection with a
"lease-in/lease-out" ("LILO") transaction?
FACTS
X is a U.S. corporation. FM is a foreign municipality that has
historically owned and used certain property having a remaining useful
life of 50 years and a fair market value of $100 million. BK1 and BK2 are
banks. None of the parties is related.
On January 1, 1997, X and FM entered into a LILO transaction under
which FM leased the property to X under a "Headlease," and X immediately
leased the property back to FM under a "Sublease." The term of the
Headlease is 34 years. The "primary" term of the Sublease is 20 years.
Moreover, as described below, the Sublease may also have a "put renewal"
term of 10 years.
The Headlease requires X to make two rental payments to FM during its
34-year term: (1) an $89 million "prepayment" at the beginning of year 1;
and (2) a "postpayment" at the end of year 34 that has a discounted
present value of $8 million. For federal income tax purposes, X and FM
allocate the prepayment ratably to the first 6 years of the Headlease and
the future value of the postpayment ratably to the remaining 28 years of
the Headlease.
The Sublease requires FM to make fixed, annual rental payments over
both the primary term and, if exercised, the put renewal term. The fixed,
annual payments during the put renewal term are substantially higher than
those for the primary term. Nevertheless, the fixed, annual payments
during the put renewal term are projected (as of January 1, 1997) to equal
only 90 percent of the fair market value rental amounts for that term.
At the end of the Sublease primary term, FM has a "fixed-payment
option" to purchase from X the Headlease residual (the right to use the
property beyond the Sublease primary term subject to the obligation to
make the rent postpayment) for a fixed amount that is projected (as of
January 1, 1997) to be equal to the fair market value of the Headlease
residual. If FM exercises the option, the transaction is terminated at
that point and X is not required to make any portion of the postpayment
due under the Headlease. If FM does not exercise the option, X may elect
to (1) use the property itself for the remaining term of the Headlease,
(2) lease the property to another person for the remaining term of the
Headlease, or (3) compel FM to lease the property for the 10-year put
renewal term of the Sublease. If FM does not exercise the fixed-payment
option and X exercises its put renewal option, X can require FM to
purchase a letter of credit guaranteeing the put renewal rents. If FM does
not obtain the letter of credit, FM must exercise the fixed-payment
option.
To partially fund the $89 million Headlease prepayment, X borrows $54
million from BK1 and $6 million from BK2. Both loans are nonrecourse, have
fixed interest rates, and provide for annual debt service payments that
fully amortize the loans over the 20-year primary term of the Sublease.
The amount and timing of the debt service payments mirror the amount and
timing of the Sublease payments due during the primary term of the
Sublease.
Upon receiving the $89 million Headlease prepayment, FM deposits $54
million into a deposit account with an affiliate of BK1 and $6 million
into a deposit account with an affiliate of BK2. The deposits with the
affiliates of BK1 and BK2 earn interest at the same rates as the loans
from BK1 and BK2. FM directs the affiliate of BK1 to pay BK1 annual
amounts equal to 90 percent of FM's annual rent obligation under the
Sublease (that is, amounts sufficient to satisfy X's debt service
obligation to BK1). The parties treat these amounts as having been paid
from the affiliate to FM, then from FM to X as rental payments, and
finally from X to BK1 as debt service payments. In addition, FM pledges
the deposit account to X as security for FM's obligations under the
Sublease, while X, in turn, pledges its interest in FM's pledge to BK1 as
security for X's obligations under the loan from BK1. Similarly, FM
directs the affiliate of BK2 to pay BK2 annual amounts equal to 10 percent
of FM's annual rent obligation under the Sublease (that is, amounts
sufficient to satisfy X's debt service obligation to BK2). The parties
treat these amounts as having been paid from the affiliate to FM, then
from FM to X as rental payments, and finally from X to BK2 as debt service
payments. Although this deposit account is not pledged, the parties
understand that FM will use the account to pay the remaining 10 percent of
FM's annual rent obligation under the Sublease.
X requires FM to invest $15 million of the Headlease prepayment in
highly-rated debt securities that will mature in an amount sufficient to
fund the fixed amount due under the fixed-payment option, and to pledge
these debt securities to X. Having economically defeased both its rental
obligations under the Sublease and its fixed payment under the
fixed-payment option, FM keeps the remaining portion of the Headlease
prepayment as its return on the transaction.
For tax purposes, X claims deductions for interest on the loans and for
the allocated rents on the Headlease. X includes in gross income the rents
received on the Sublease and, if and when exercised, the payment received
on the fixed payment option. By accounting for each element of the
transaction separately, X purports to generate a stream of substantial net
deductions in the early years of the transaction followed by net income
inclusions on or after the conclusion of the Sublease primary term. As a
result, X anticipates a substantial net after-tax return from the
transaction. X also anticipates a positive pre-tax economic return from
the transaction. However, this pre-tax return is insignificant in relation
to the net after-tax return.
LAW AND ANALYSIS
In general, a transaction will be respected for tax purposes if it has
"economic substance which is compelled or encouraged by business or
regulatory realities, is imbued with tax-independent considerations, and
is not shaped solely by tax-avoidance features that have meaningless
labels attached." Frank Lyon Co. v. United States, 435 U.S. 561, 583-84
(1978); James v. Commissioner, 899 F.2d 905, 908-09 (10th Cir. 1990). In
assessing the economic substance of a transaction, a key factor is whether
the transaction has any practical economic effect other than the creation
of tax losses. Courts have refused to recognize the tax consequences of a
transaction that does not appreciably affect the taxpayer's beneficial
interest except to reduce tax. The presence of an insignificant pre-tax
profit is not enough to provide a transaction with sufficient economic
substance to be respected for tax purposes. Knetsch v. United States, 364
U.S. 361, 366 (1960); ACM Partnership v. Commissioner, 157 F.3d 231, 248
(3d Cir. 1998); Sheldon v. Commissioner, 94 T.C. 738, 768 (1990).
In determining whether a transaction has sufficient economic substance
to be respected for tax purposes, courts have recognized that offsetting
legal obligations, or circular cash flows, may effectively eliminate any
real economic significance of the transaction. For example, in Knetsch,
the taxpayer purchased an annuity bond using nonrecourse financing.
However, the taxpayer repeatedly borrowed against increases in the cash
value of the bond. Thus, the bond and the taxpayer's borrowings
constituted offsetting obligations. As a result, the taxpayer could never
derive any significant benefit from the bond. The Supreme Court found the
transaction to be a sham, as it produced no significant economic effect
and had been structured only to provide the taxpayer with interest
deductions.
In Sheldon, the Tax Court denied the taxpayer the purported tax
benefits of a series of Treasury bill sale-repurchase transactions because
they lacked economic substance. In the transactions, the taxpayer bought
Treasury bills that matured shortly after the end of the tax year and
funded the purchase by borrowing against the Treasury bills. The taxpayer
accrued the majority of its interest deduction on the borrowings in the
first year while deferring the inclusion of its economically offsetting
interest income from the Treasury bills until the second year. The
transactions lacked economic substance because the economic consequences
of holding the Treasury bills were largely offset by the economic cost of
the borrowings. The taxpayer was denied the tax benefit of the
transactions because the real economic impact of the transactions was
"infinitesimally nominal and vastly insignificant when considered in
comparison with the claimed deductions." Sheldon at 769.
In ACM Partnership, the taxpayer entered into a near-simultaneous
purchase and sale of debt instruments. Taken together, the purchase and
sale "had only nominal, incidental effects on [the taxpayer's] net
economic position." ACM Partnership at 250. The taxpayer claimed that,
despite the minimal net economic effect, the transaction had a large tax
effect resulting from the application of the installment sale rules to the
sale. The court held that transactions that do not "appreciably" affect a
taxpayer's beneficial interest, except to reduce tax, are devoid of
substance and are not respected for tax purposes. ACM Partnership at 248.
The court denied the taxpayer the purported tax benefits of the
transaction because the transaction lacked any significant economic
consequences other than the creation of tax benefits.
Viewed as a whole, the objective facts of the LILO transaction indicate
that the transaction lacks the potential for any significant economic
consequences other than the creation of tax benefits. During the 20-year
primary term of the Sublease, X's obligation to make the property
available under the Sublease is completely offset by X's right to use the
property under the Headlease. X's obligation to make debt service payments
on the loans from BK1 and BK2 is completely offset by X's right to receive
Sublease rentals from FM. Moreover, X's exposure to the risk that FM will
not make the rent payments is further limited by the arrangements with the
affiliates of BK1 and BK2. In the case of the loan from BK1, X's economic
risk is completely eliminated through the defeasance arrangement. In the
case of the smaller loan from BK2, X's economic risk, although not
completely eliminated, is substantially reduced through the deposit
arrangement. As a result, neither bank requires an independent source of
funds to make the loans, or bears significant risk of nonpayment. In
short, during the Sublease primary term, the offsetting and circular
nature of the obligations eliminate any significant economic consequences
of the transaction.
At the end of the 20-year Sublease primary term, X will have either the
proceeds of the fixed-payment option or a Headlease residual that has a
fair market value approximately equal to the proceeds of the fixed payment
option. If, at the end of the 20-year Sublease primary term, the Headlease
residual is worth more than the payment required on the fixed-payment
option, FM will capture this excess value by exercising the fixed payment
option, leaving X with only the proceeds of the option. Conversely, if, at
the end of the 20-year Sublease primary term, the Headlease residual is
worth significantly less than the payment required on the fixed-payment
option, X will put the property back to FM under the put renewal option at
rents, that while initially projected to be at only 90 percent of
estimated fair market value, are (because of the decline in the value of
the property) greater than fair market value. Thus, the fixed payment
option and put renewal option operate to "collar" the value of the
Headlease residual during the primary term, limiting much of the economic
consequence of the Headlease residual.
In addition, facts indicate that there is little economic consequence
from X's nominal exposure to FM's credit under the fixed-payment option
and, if exercised, the put renewal term. At the inception of the
transaction, FM was required to use a portion of the Headlease prepayment
to purchase highly-rated debt securities that were pledged to X ensuring
FM's ability to make the payment under the fixed-payment option. If FM
does not exercise the fixed-payment option and X exercises the put renewal
option, X can require FM to purchase a letter of credit guaranteeing FM's
obligation to make the put renewal rent payments. If FM does not obtain
the letter of credit, FM must exercise the fixed-payment option. Thus, as
a practical matter, the transaction is structured so that X is never
subject to FM's credit.
The conclusion that X is insulated from any significant economic
consequence of the Headlease residual is further supported by several
factors indicating that the parties expect FM to exercise the
fixed-payment option. First, FM has historically used the property.
Second, because the fixed payment obligation is fully defeased, FM need
not draw on other sources of capital to exercise the option. However, if
FM does not exercise the fixed payment option and X exercises the put
renewal option, FM would be required to draw on other sources of capital
to satisfy its put renewal rental obligations.
In sum, the LILO transaction lacks the potential for significant
economic consequences other than the creation of tax benefits. During the
primary term of the Sublease, X's obligations to provide property are
completely offset by its right to use property. X's obligations to make
debt service payments on the loans are completely offset by X's right to
receive rent on the Sublease. These cash flows are further assured by the
deposit arrangements with the affiliates of BK1 and BK2. Finally, X's
economic exposure to the Headlease residual is rendered insignificant by
the option structure and the pledge of the securities that defeases FM's
option payment. Thus, the only real economic consequence of the LILO
transaction during the 20-year primary term of the Sublease is X's pre-tax
return. This pre-tax return is too insignificant, when compared to X's
after-tax yield, to support a finding that the transaction has significant
economic consequences other than the creation of tax benefits.
Some of the features of the LILO transaction discussed above are
present in transactions that the Service will respect for federal income
tax purposes. For example, an arrangement for "in-substance defeasance" of
an outstanding debt was respected in Rev. Rul. 85-42, 1985-1 C.B. 36. By
contrast, in the LILO transaction, the deposit arrangement exists from the
inception of the transaction, eliminating any need by BK1 and BK2 for an
independent source of funds. Similarly, other features of the LILO
transaction, such as nonrecourse financing and fixed-payment options, are
respected in other contexts. However, when these and other features are
viewed as a whole in the context of the LILO transaction, these features
indicate the transaction should not be respected for tax purposes.
As a result of the transaction lacking economic substance, X may not
deduct interest or rent paid or incurred in connection with the
transaction.
The Service will scrutinize LILO transactions for lack of economic
substance and/or, in appropriate cases, recharacterize transactions for
federal income tax purposes based on their substance. See, e.g., Gregory
v. Helvering 293 U.S. 495 (1935), Bussing v. Commissioner, 88 T.C. 449
(1987), Supplemental Opinion, 89 T.C. 1050 (1987). Use of terms such as
"loan," "lease," "Headlease," and "Sublease" in this revenue ruling should
not be interpreted to indicate the Service's acceptance of X's
characterization of the LILO transaction described above.
HOLDING
A taxpayer may not deduct, under sections 162 and 163, rent and
interest paid or incurred in connection with a LILO transaction that lacks
economic substance.
EFFECT ON OTHER DOCUMENTS
Rev. Rul. 85-42 is distinguished.
DRAFTING INFORMATION
The principal author of this revenue ruling is John Aramburu of the
Office of Assistant Chief Counsel (Income Tax and Accounting). For further
information regarding this revenue ruling contact Mr. Aramburu on (202)
622-4960 (not a toll-free call).
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