Court Case Denies S Corp Shareholder’s Losses for Insufficient Debt Basis

Date July 10, 2019
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S corporation shareholders can deduct losses only to the extent of their adjusted stock and debt basis in the corporation (see Can You Deduct Your S Corp Losses?, Passive Activity Loss Rule).

A shareholder creates stock basis by contributing capital, and debt basis by lending money to the S corporation, both of which are considered “actual economic outlays” by the shareholder. As described in a recent court case (Meruelo v. Comm., 123 AFTR 2d. 2019), to claim a loss from the activity the shareholder must have been “left poorer in a material sense after the transaction.”

Meruelo
In Meruelo, the S corporation suffered a nearly $27 million loss after banks foreclosed on its condominium complex. The taxpayer claimed he had sufficient basis to claim his $13 million share of the loss. His basis comprised of $5 million of capital contributions and more than $9 million of debt basis for transfers from other businesses in which he was an owner. The IRS ruled, and the Tax and Appellate Courts confirmed, that the taxpayer was entitled to claim a $5 million loss, but denied the deduction for any loss claimed on the debt as it was not directly from the shareholder.

The Problem with Debt Basis
It’s clear that a loan from a shareholder to their S corporation creates debt basis. Debt basis is also established when the shareholder borrows funds that it then loans directly to the S corporation, commonly referred to as a “back-to-back loan.” However, the IRS and courts have consistently ruled that anything outside a direct loan from the shareholder to the S corporation does not create debt basis.

In Meruelo, the taxpayer’s CPA was aware of this rule and drafted a promissory note from the S corporation to the taxpayer for a $10 million unsecured line of credit with a 6 percent interest rate. The CPA also reported the taxpayer’s share of related entity debt as shareholder loans on the S corporation’s tax return. The Court rejected the taxpayer’s argument that the arrangement was in effect a back-to-back loan, because there was no evidence that the funds had been lent to the taxpayer and then back to the S corporation. It explained that a shareholder could create debt basis by borrowing from an affiliated company and then lending the funds to an S corporation. But it also held that taxpayers are bound by the form of the transaction they initially choose; the funds advanced as intercompany loans cannot later be reclassified as shareholder loans to create basis.

What Should Shareholders Do?
The fact pattern in Meruelo is one we often encounter, a taxpayer with ownership in multiple entities using earnings from one or more to fund the losses of another. The case highlights the potential tax pitfalls of using this arrangement without proper planning. Shareholders should avoid using intercompany transfers to fund operations where basis limitations could become an issue. Instead, they should consider taking distributions or loans from their related businesses and either contributing or loaning the funds to the entity in need of cash. Done properly, this will create basis.

For questions on this or related tax matters, please contact Ben DiGirolamo at BDiGirolamo@hbkcpa.com.

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Unpaid Tax Debt Could Prohibit Foreign Travel

Date August 22, 2018
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HBK CPAs & Consultants

Did you know the Internal Revenue Service (IRS) has the authority to stop you from traveling abroad? The prohibition can kick in when you have an unsatisfied tax debt. The rules vary, but apply to all U.S. passport holders as well as certain U.S. resident aliens and nonresident aliens.

U.S. Passport Holders
U.S. passport holders with significant outstanding cumulative tax liabilities can have their passport application denied or current passport revoked by the State Department. If a U.S. passport holder owes more than $51,000 of cumulative tax liabilities (including interest and penalties), and either a levy to collect the debt was issued or a notice of federal tax lien was provided, that individual is in jeopardy of losing their passport.

When the IRS recognizes a taxpayer as not responding to its collection attempts, the agency is required to notify the taxpayer in writing that it is certifying the debt to the State Department. If the taxpayer also happens to be applying for a passport, he or she will have 90 days to resolve the issues with the IRS of the passport application will be denied. The IRS will reverse a certification issued to the State Department within 30 days once the taxpayer makes full payment of the taxes owed, or once the taxpayer enters into an installment agreement or other type of agreement or settlement with the IRS.

Resident Aliens and Nonresident Aliens
Prior to departing the U.S., U.S. resident aliens and nonresident aliens are required to obtain a “sailing permit” from the IRS. The document acts as a tax clearance and departure permit and allows resident and nonresident aliens to travel freely. There are some exceptions depending on the type of visa that an individual holds. For instance, visitors that are only visiting the U.S. on vacation or for business would typically not be required to obtain the sailing permit. In addition, certain students attending schools in the U.S. with no taxable income would typically not be required to obtain a sailing permit. A detailed list of the exceptions can be found on the IRS website. In order to obtain a sailing permit, the resident or nonresident alien must visit their nearest IRS office no earlier than 30 days prior to their planned departure to apply. The IRS recommends applying at least two (2) weeks prior to departure. The following items should be brought to the IRS office:

  • Passport
  • Social security number or tax identification number
  • Copies of tax returns for the two most recent tax years
  • Receipts for income taxes paid on these returns
  • Proof of deductions claimed on prior returns
  • Proof of income for the current year
  • Proof of any estimated tax payments

If a resident has taxable income for the current year, but can demonstrate that their departure will not hinder the collection of tax, or if a resident or nonresident alien has no taxable income, they could be eligible to file a short informational form (Form 2063) certifying that all income tax obligations have been satisfied. If a resident or nonresident alien is not eligible to use the short informational form, they must file a tax return, Form 1040-C, and pay any taxes that are due on the current year’s income. This tax return does not excuse the requirements to file an annual tax return, and any taxes paid on Form 1040-C will be applied as an estimated tax payment on the annual return.

Implications
Sailing permit rules have been in effect since the early 1920s, but budgetary issues have prevented the IRS from enforcing them. With the implementation of the new passport revocation rule for U.S. passport holders, there is concern that the IRS will begin enforcing sailing permit rules to improve tax collections. As a result, we advise anyone planning to travel abroad to take the time before their anticipated departure date to ensure their tax liabilities are satisfied.

If you have questions regarding the passport revocation rule or the sailing permit rules, or would like more information, please reach out to a member of the Tax Advisory Group at HBK.

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