January 18, 2022

Volume XII, Number 18

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January 15, 2022

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Inversion Transactions Addressed in Treasury Notice

On Monday, September 22nd, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) published Notice 2014-52 (the “Notice”) announcing their intention to issue regulations that would address corporate inversion transactions. If issued in the form described in the Notice, the regulations would prevent certain narrow categories of inversions, including so-called “spinversions” and transactions involving a foreign company with predominantly passive assets. In most circumstances, however, the rules described in the Notice will only reduce, not eliminate, the tax benefits from an inversion. The precise impact of the rules on a particular proposed transaction will depend on the specific circumstances of the companies involved. The Notice states that its rules will apply retroactively to transactions that were completed on or after September 22, 2014, the date of the publication of the Notice.

In a corporate inversion, the ownership of a U.S. corporate group is restructured in a way that causes the U.S. group to become owned by a non-U.S. parent company. Inversions have a long history, beginning in the 1980s, and previously inspiring anti-inversion regulations in 1995 and legislation in 2004. Under the 2004 legislation, if the former shareholders of the U.S. company own 80 percent or more of the equity of the new foreign parent, the inversion is effectively disregarded, with the new parent being treated as a U.S. corporation for all U.S. income tax purposes. If the former shareholders of the U.S. group own 60 percent or more of the combined group (but less than 80 percent), the non-U.S. status of the new foreign parent is respected, but certain adverse tax rules apply. Although earlier inversions generally involved an internal restructuring of a single U.S. company that redomiciled its parent corporation outside the United States, the recent wave of inversions typically involve mergers of two companies, each with significant business operations, but which nonetheless fall between the 60 percent and 80 percent tests because significant ownership of the combined group is acquired by shareholders of the non-U.S. target company.

Although such inversions involve a significant business combination, they may also provide a number of tax advantages. The principal U.S. income tax benefits from these transactions include: (1) reducing the U.S. taxation of the group’s U.S. operations through the use of arrangements that result in the payment of interest (or other deductible expenses) to a foreign affiliate; (2) providing access to the U.S. group’s “deferred” foreign earnings; and (3) eliminating the residual U.S. taxation of the group’s future earnings from foreign operations.

The Notice seeks to nullify certain inversion transactions.  It also seeks to limit access to deferred foreign earnings.  On the other hand, the Notice does not alter the definition of a pure inversion, the statutory 80 percent ownership threshold remains the standard for nullifying an inversion except in the three narrow circumstances identified in the Notice.  Nor does it address the use of interest deductions to reduce the U.S. tax burden on the company’s U.S. operations, although it does state that Treasury and the IRS “expect to” issue additional guidance addressing inversion, including possibly the U.S. interest deduction, and that this guidance would apply to companies that inverted on or after September 22, 2014.

In sum, while the Treasury Notice is an important chapter in the ever-changing inversions narrative, it is not the end of the story.  The focus now turns to the effect of the Treasury Notice on the several publicly announced deals as well as the possibility of additional transactions in the coming months, and the impact of these developments on the possibility of further action by Congress or Treasury.

© 2022 Covington & Burling LLPNational Law Review, Volume IV, Number 281
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About this Author

Jon Kyl, Regulatory and public policy lawyer, Covington
Senior Of Counsel

Jon Kyl retired from Congress in January 2013 as the second-highest ranking Republican senator. He advises companies on domestic and international policies that influence U.S. and multi-national businesses and assists corporate clients on tax, health care, defense, national security and intellectual property matters among others.

During Senator Kyl’s 26 years in Congress, he built a reputation for mastering the complexities of legislative policy and coalition building, first in the House of Representatives and then in the Senate.  In 2010, Time magazine...

202-662-5660
Michael Caballero, Tax Practice Attorney, Covington & Burling Law Firm
Partner

Michael Caballero is a partner in the Washington office and a vice chair of the Tax Practice Group.  His practice focuses on international tax matters, including structural and transactional tax planning, tax controversy and other government relations and tax policy work.

Mr. Caballero recently served as International Tax Counsel in the U.S. Treasury's Office of Tax Policy.  While at the Treasury, he participated in the development of legislation, regulations and administrative guidance concerning international tax matters; oversaw the U.S. tax treaty program; and...

202-662-5610
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