United States Tax Issues Affecting Cross Border Collateral and Guarantees

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1 Dedicated To Partnering With Our Clients November 2001 Volume 2 OUR COMMITMENT TO OUR CLIENTS Partnering We are an essential part of our clients success, working every day to enhance our clients business relationships by making available our substantial contacts in the business community. We are partners in the broadest sense with our clients; ensuring their financial success is a core part of the service that we provide. Efficiency and Practicality We provide practical, results oriented advice, with a view towards bridging differences and closing transactions efficiently and economically. Partner Responsibility Partners are responsible for structuring transactions, negotiating and drafting all significant documents and closing all deals. World Class Experience The Financial Services Group has broad practice experience in all aspects of bank and institutional lending transactions, including cash flow and asset based lending, project and limited recourse financings, large and middle market cap financings, senior, subordinated and mezzanine financings, investment grade and leveraged transactions, domestic and cross-border deals and work-out and debtor-inpossession financings United States Tax Issues Affecting Cross Border Collateral and Guarantees In today s rapidly globalizing market, lenders often must decide whether to extend credit to a United States organized corporate borrower (U S Borrower) that may have non-u S operations or assets held through its foreign subsidiaries (Foreign Subsidiaries) In many cases these operations may represent either substantial parts of the U S Borrower s revenue stream or its overall assets As a result, a lender may have a great interest in perfecting security interests in the capital stock of the U S Borrower s Foreign Subsidiaries or their assets, or obtaining guarantees from them (Credit Support Arrangements) This issue of the newsletter discusses the U S income tax implications of obtaining credit support for the U S Borrower s loan obligations from its Foreign Subsidiaries The first article discusses the relevant U S income tax issues involved in obtaining Credit Support Arrangements The second article discusses safe harbors and alternative methods of obtaining Credit Support Arrangements without triggering adverse U S tax consequences The final article discusses a variety of circumstances which may be applicable to a U S Borrower and its Foreign Subsidiaries which would allow lenders to obtain the desired Credit Support Arrangements while avoiding negative U S income tax consequences U S OFFICES Atlanta, Georgia Baltimore, Maryland Charlotte, North Carolina Charlottesville, Virginia Chicago, Illinois Jacksonville, Florida New York, New York Norfolk, Virginia Pittsburgh, Pennsylvania Richmond, Virginia Tysons Corner, Virginia Washington, D C INTERNATIONAL OFFICES Almaty, Kazakhstan Brussels, Belgium Moscow, Russia (of counsel) www mcguirewoods com

2 Income Tax Issues Deemed Dividends Under Section 956 BACKGROUND Under current Internal Revenue Code provisions, a United States organized corporate borrower (U S Borrower) 1 is not taxed on the earnings and profits of its foreign subsidiaries (Foreign Subsidiaries) until the Foreign Subsidiaries repatriate (via payment of dividends or other distributions) those earnings or profits to the U S Borrower Accordingly, a U S Borrower may choose to keep the Foreign Subsidiaries earnings and profits offshore, permitting the Foreign Subsidiaries cash reserves to accumulate Prior to the enactment of Section 956 of the Internal Revenue Code (Section 956), a U S Borrower could, without suffering an adverse U S income tax consequence, benefit from the accumulating cash reserves of its Foreign Subsidiaries through Credit Support Arrangements such as a pledge of all of the Foreign Subsidiaries capital stock, a pledge of the assets of the Foreign Subsidiaries or a guarantee by the Foreign Subsidiaries of the U S Borrower s obligations (Credit Support Agreements) Such Credit Support Arrangements allowed the U S Borrower to obtain more favorable terms from its lenders without the retained earnings and profits of the Foreign Subsidiaries being subject to U S taxation SECTION 956 TRIGGERS To narrow the scope of the tax avoidance consequences of these Credit Support Arrangements, Section 956 was enacted Under Section 956, there are three trigger events that cause the accumulated earnings and profits of Foreign Subsidiaries to be deemed to have been dividended to the U S Borrower for U S income tax purposes: A Guaranty A guaranty made by the Foreign Subsidiaries for the debt obligations of the U S Borrower A Pledge of Stock plus Negative Covenants A U S Borrower pledges 66 2/3% or more of the Foreign Subsidiaries voting stock AND the U S Borrower limits the Foreign Subsidiaries ability to dispose of assets or incur liabilities A Lien on Assets The Foreign Subsidiaries grant a lien on their assets to secure a debt obligation of the U S Borrower TAX CONSEQUENCES If a Section 956 trigger event has occurred, the Foreign Subsidiaries untaxed accumulated profits and earnings are taxed as if they were paid to the U S Borrower as a dividend, subject to a maximum amount not to exceed the principal amount of the U S Borrower s loans supported by the Credit Support Arrangements Even if the Foreign Subsidiaries have no earnings or profits at the time a Credit Support Arrangement is created, their future earnings and profits will be subject to the deemed dividend treatment 1The discussion of issues in this article (and the following articles) arising from the obtaining of Credit Support Arrangements only applies to U S corporations and their Foreign Subsidiaries that are corporations U S entities and foreign entities that are either not corporate in structure or are designed as pass through entities for tax purposes are not affected by Section 956 Section 956 Safe Harbors and Alternative Structures 2 Section 956 of the Internal Revenue Code severely restricts the ability of a United States organized corporate borrower (U S Borrower) 1 to (i) use the stock of its Foreign Subsidiaries or (ii) to cause its Foreign Subsidiaries to pledge their assets or to enter into a guarantee to provide credit support for the U S Borrower s loan obligations In many cases, the use of such Credit Support Arrangements would trigger a deemed dividend of the Foreign Subsidiaries retained earnings and profits in an amount equal to the lesser of such earnings and profits or the amount of such loan obligation Described below are two safe harbors permitted under Section 956 to obtain some credit support from a U S Borrower s Foreign Subsidiaries Also described below are three alternative structures that allow Foreign Subsidiaries to provide credit support for the U S Borrower s loan obligations without triggering a deemed dividend

3 SECTION 956 SAFE HARBOR RULES Under Section 956 a U S Borrower may pledge less than 66 2/3% of the capital stock of its Foreign Subsidiaries without triggering a deemed dividend Further, a U S Borrower may pledge more than 66 2/3% of such stock if such pledge does not carry with it certain negative covenants This second alternative is of limited practical use to lenders as the typical negative covenants found in a secured lending transaction would violate the Section 956 safe harbor rules Note that a pledge of the capital stock of multiple tiers of Foreign Subsidiaries would trigger deemed dividend treatment if the lenders are directly or indirectly given the benefit of a pledge of 66 2/3% or more of any foreign subsidiary s capital stock ALTERNATIVE STRUCTURES U.S. Borrower establishes an Intermediate Special Purpose Holding Company One structure that has been used to enhance lenders collateral position vis a vis a U S Borrower s Foreign Subsidiaries is to cause the U S Borrower to create an intermediate U S special purpose holding company which would become the parent company of the Foreign Subsidiaries This structure would work as follows: First, the U S Borrower establishes a U S corporation as a wholly owned subsidiary (Intermediate Holding Company) Second, the U S Borrower contributes all of the capital stock of its Foreign Subsidiaries to the Intermediate Holding Company Third, the U S Borrower pledges all of its capital stock in the Intermediate Holding Company to the lenders Fourth, the Intermediate Holding Company grants a security interest to the lenders in all of the Intermediate Holding Company s non Foreign Subsidiary capital stock assets Fifth, the Intermediate Holding Company guarantees payment of the loans made to the U S Borrower Sixth, the Intermediate Holding Company pledges less that 66 2/3% of the capital stock of its first tier Foreign Subsidiaries to the lenders Seventh, the Intermediate Holding Company is sanitized by having it agree to negative covenants prohibiting it from incurring debt or other obligations, granting liens or engaging in any business other than the ownership of the stock of its Foreign Subsidiaries The effect of these provisions is to ensure that there are and will be no other competing debt or lien holder claimants of Intermediate Holding Company This structure, in effect, gives lenders control over the capital stock of the Foreign Subsidiaries while avoiding the consequence of deemed dividends that normally results from taking a direct pledge of Foreign Subsidiaries stock Although this structure makes the stock of the Foreign Subsidiaries one step removed structurally from the lenders ultimate security interest, the sanitization of the Intermediate Holding Company has the effect of giving the lenders a first priority claim to the Foreign Subsidiaries stock as there should be no competing creditors or lien holders at the Intermediate Holding Company level While this structure enhances the lenders position with respect to the stock of the Foreign Subsidiaries, this structure still does not allow (i) a direct pledge of more than 66 2/3% of the Foreign Subsidiaries capital stock or the assets of the Foreign Subsidiaries or (ii) a guarantee from the Foreign Subsidiaries In this structure, the lenders remain equity holder claimants with a call on the Foreign Subsidiaries assets that is subordinate to the Foreign Subsidiaries creditors Lend Directly to the Foreign Subsidiaries When the U S Borrower intends to use the proceeds of its own credit facility to fund the working capital needs of its Foreign Subsidiaries, lenders may consider making the loans directly to the Foreign Subsidiaries to avoid Section 956 tax consequences to the U S Borrower This structure allows lenders to obtain collateral from the Foreign Subsidiaries for the direct loans In addition, lenders could obtain a guaranty from the U S Borrower secured by all of the U S Borrower s assets This guarantee arrangement places the direct loans to the Foreign Subsidiaries on a pari passu basis with any loans made directly to the U S Borrower Note that direct lending to Foreign Subsidiaries may cause foreign tax withholding issues based on the jurisdictions of operations of the Foreign Subsidiaries Lend to the U.S. Borrower, Which Then Lends to the Foreign Subsidiary Another structure that may enhance the lenders credit support for loans that are intended to provide funds to the Foreign Subsidiaries is the double assignment First, the U S Borrower obtains a loan from the lenders The continued on page 4 3

4 Section 956 continued from page 3 U S Borrower then advances the proceeds of the loan to the Foreign Subsidiaries and takes a security interest in the Foreign Subsidiaries assets to secure the intercompany advances (Note that cross collateralization among the Foreign Subsidiaries intercompany loans would not be permitted) The U S Borrower then assigns the intercompany loans and their security to the Lenders As a result, the lenders have an indirect claim against the Foreign Subsidiaries assets Lenders must be aware of two issues raised by this structure One: lenders will not have recourse to the Foreign Subsidiaries assets unless the amount advanced to the Foreign Subsidiary is enforceable as debt rather than equity under applicable foreign law Two: the lenders recourse to the Foreign Subsidiaries assets is limited to the amount of debt the Foreign Subsidiaries owe to the U S Borrower This means that the value of the pledged assets of a Foreign Subsidiary that exceeds the amount that such Foreign Subsidiary owes the U S Borrower is not available to lenders seeking repayment of the U S Borrower s loans or the intercompany loans made to the U S Borrower s other Foreign Subsidiaries Avoiding Negative Tax Consequences Situations Where a Lender is Not Limited in Taking Collateral and Guarantees from Foreign Subsidiaries 4 Typically when lenders discuss with a United States organized corporate borrower (U S Borrower) 1 the subject of obtaining credit support for the U S Borrower s lending obligations such as (i) taking a pledge of the stock of the U S Borrower s Foreign Subsidiaries, (ii) taking a security interest in the Foreign Subsidiaries assets or (iii) or obtaining a guarantee from the Foreign Subsidiaries, the U S Borrower usually takes the position that it is not possible due to adverse U S income tax consequences In most cases the lenders will acquiesce due to limited knowledge of Section 956 of the Internal Revenue Code As a result, the lenders will most likely end up with only a pledge of less than 66 2/3% of the capital stock of the U S Borrower s top tier Foreign Subsidiaries (which fits within a safe harbor under Section 956) In most lending situations, this is the appropriate result from a U S income tax standpoint for the U S Borrower although it may not necessarily be the right answer for the lenders from a credit point of view In this article, we will cover a variety of circumstances where additional inquiry into the tax position of the U S Borrower and its Foreign Subsidiaries may reveal a situation where the lenders would be able to obtain the desired Credit Support Arrangements from the Foreign Subsidiaries without causing material negative U S income tax consequences to the U S Borrower NO EARNINGS OR PROFITS The first situation is where the Foreign Subsidiaries have no earnings or profits that would trigger a deemed dividend For example, the U S Borrower decides to invest in a new overseas operation through the creation of new Foreign Subsidiaries or through the acquisition of foreign corporations In the former example, there is no operating history for the new Foreign Subsidiaries and accordingly there are no earnings or profits to be subjected to deemed dividend treatment Similarly the acquisition of the foreign corporations could be structured to eliminate any prior earnings and profits subject to U S income taxation As a result, the lenders would be able to obtain the benefits of Credit Support Arrangements However, any future earnings and profits created by the Foreign Subsidiaries would be currently included in the consolidated net income of the U S Borrower whether or not these earnings and profits were repatriated to the U S Borrower The amount of the deemed dividend would be capped at the lesser of the amount of the U S Borrower s loan obligation to the lenders and the amount of retained earnings and profits of the applicable foreign subsidiary 1 See Page 2

5 TRANSFER PRICING A second situation where obtaining Credit Support Arrangements from Foreign Subsidiaries would not result in material negative tax consequences to a U S Borrower is where the U S Borrower has arranged its business affairs with the Foreign Subsidiaries, such as the use of transfer pricing, so as to minimize income realized by the Foreign Subsidiaries Under transfer pricing the U S Borrower, in order to avoid paying taxes to foreign jurisdictions which have higher marginal tax rates than U S income tax rates, would cause the Foreign Subsidiaries to charge the U S Borrower a price for items sold in an intercompany transaction at or near the actual cost of manufacturing The U S Borrower would then sell the items for market value, thereby capturing for itself all or almost all of the profit from the manufacture and sale of the items This minimizes income attributable to the Foreign Subsidiaries (and the amount subject to taxation at the higher marginal rate) Accordingly, there should be minimal earnings and profits on which to impose a deemed dividend if the Foreign Subsidiaries were to enter into a credit support arrangement TAX CREDITS AND OFFSETS A third situation where the entering into of Credit Support Arrangements, although triggering a deemed dividend, may not cause a material negative tax consequence is where the U S Borrower s tax position is such as to minimize the effect of a deemed dividend For instance, the U S Borrower may have offsetting expiring foreign tax credits Using these credits to offset a deemed dividend would allow the U S Borrower to offer its lenders a more favorable foreign asset collateral/ guarantee package in exchange for more lenient loan terms Even if the U S Borrower does not have such credits, its need to have sufficient collateral to entice lenders to extend credit may cause the U S Borrower to decide to use other available foreign tax credits or its own U S net operating losses or other income offsets to ameliorate the impact of a deemed dividend As with any other situation where the Foreign Subsidiaries have provided Credit Support Arrangements, the Foreign Subsidiaries future earnings and profits would be taxed currently as U S related income FOREIGN SUBSIDIARY S INCOME TREATED AS U.S. RELATED INCOME A fourth situation where Credit Support Arrangements could be obtained without materially affecting the U S Borrower s U S tax position is where either the U S Borrower has historically repatriated all foreign earnings and profits, or where there is an economic incentive to have such earnings and profits currently taxed as U S income In the former case, the U S Borrower s financial situation may require it to have all of its consolidated cash available for U S purposes or the Foreign Subsidiaries may be located in an area subject to political or economic risk that make it prudent for the Foreign Subsidiaries earnings and profits to be repatriated on a periodic basis Alternatively, it may bestow an economic benefit on the U S Borrower to currently repatriate the Foreign Subsidiaries earnings and profits The most likely scenario illustrating this is where the jurisdictions of operation of the Foreign Subsidiaries impose taxes on their income at a marginal tax rate higher than the corresponding U S tax rate applicable to such income In such a case, if the Foreign Subsidiaries get the proper credit for foreign taxes for amounts paid to U S taxing authorities, the U S Borrower may be able to retain more of the real earnings and profits of the Foreign Subsidiaries then allowing these amounts to remain offshore Another set of circumstances where a deemed dividend may not have a material negative impact on the U S Borrower s income tax position is where the Foreign Subsidiaries earnings and profits are already included in the U S Borrower s U S related income This may occur where the Foreign Subsidiaries income is so-called Subpart F income-income derived from certain related party transactions such as sales of property or the provision of services which result in income to the Foreign Subsidiaries Such income under U S income tax provisions is included in the U S Borrower s current income A final set of circumstances where Foreign Subsidiaries income is at least partially included in the U S Borrower s income is where (i) the Foreign Subsidiaries have built up earnings and profits in excess of what the IRS deems to be a reasonable amount for the operation of the Foreign Subsidiaries business and (ii) such excess amounts generates earnings related to interest and dividend income The IRS will cause such excess amounts to be treated as a deemed dividend continued on page 6 5

6 Avoiding Negative Tax Consequences continued from page 5? is a publication of McGuireWoods LLP McGuireWoods LLP. All rights reserved. Quotation with attribution is permitted. This publication offers general information and should not be taken or used as legal advice for specific situations which depend on the evaluation of precise factual circumstances.

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