Daily Tax Update - September 29, 2008

HOUSE REJECTS $700 BILLION FINANCIAL RESCUE BILL!:  Today, the House failed to pass the “Emergency Economic Stabilization Act of 2008” (H.R. 3997) by a vote of 228 nays to 205 yeas.  The measure needed 218 votes for passage.  House Republicans rejected it by a 2-1 margin, and more than 90 Democrats voted no.  Opponents said that part of the reason for the opposition from Republicans was what they called a partisan floor speech before the vote by House Speaker Nancy Pelosi.  After the vote, House Minority Leader John Boehner said, “I think we need to renew our efforts. . . . I think we need to calm down, relax and go back to work.”

• The voting time was held open for an extended period in order to try to persuade opponents to change their vote in support of the bill.  It is unclear when Congressional leaders will try to bring up the bill again.  Supporters vowed to try to bring the rescue bill up for consideration again as soon as possible.  However, Congress is not in session tomorrow.
• According to the Senate Finance Committee, the tax provisions in the financial rescue plan are as follows:
  

“Help for Homeowners Sinking Under Mortgage Debt:  Usually, when homeowners have parts of their mortgages forgiven, they immediately owe income taxes on the amount of indebtedness forgiven.   To keep struggling homeowners from facing higher tax bills, the housing relief bill passed by Congress this year allowed homeowners caught up in the mortgage crisis to avoid paying tax on forgiven mortgage debts through 2009.  To help more homeowners stay on their financial feet in the ongoing economic crisis, the rescue plan will extend through 2012 the housing bill provision that forgives income from the cancellation of indebtedness.  It does not extend the relief to home equity loans.  

“Fairness for Banks Hit by the Failures of Fannie Mae and Freddie Mac: Federal law limits the allowable investments for banks, and so many community banks invested in Fannie Mae and Freddie Mac preferred stock – which became worthless when the government bailed those companies out.  This proposal ensures fairness for the approximately 800 banks that held Fannie and Freddie preferred stock, by allowing financial institutions or financial institution holding companies to treat their Fannie and Freddie losses as ordinary losses.  Applying to any preferred stock that was owned on September 6, 2008 or sold between January 1 and September 6, 2008, this provision will allow banks to claim the book benefit of the loss on their tax returns, therefore reducing the need to obtain additional capital from the FDIC or investors.  This should also prevent some community banks from becoming insolvent.  

“Stronger Taxation of Compensation and Severance Pay for Financial Executives: The financial rescue plan contains non-tax measures aimed at limiting executive compensation and ‘golden parachute’ severance packages overall for companies and executives participating in the buyout – a key element in gaining approval of the package among negotiators.  When the Treasury directly buys assets from a company, not through an auction or bidding process, the financial institution will be required to meet certain standards for executive compensation, including a total prohibition on ‘golden parachute’ severance payments to senior executive officers. 

“When more than $300 million of a company’s assets are purchased by the Treasury through an auction, ‘golden parachute’ payments will be banned for top executives hired while the Treasury rescue is in effect.  Additionally, tax provisions will kick in to strengthen the tax treatment of remaining executive compensation and severance packages.  The deductibility of executive compensation for companies will be cut in half from the level in current law, and companies will also lose deductions currently available for excessively large severance packages.  Executives receiving severance packages will continue to face a 20 percent excise tax on payments once they reach an excessive threshold, and that tax will now be due if the executive leaves for reasons other than a standard retirement for which they are eligible – not just if the company changes hands, as in current law.”

• The roll call vote can be accessed here or here.  
• The text of the bill and summaries can be accessed here or here.
  

IRS ISSUES GUIDANCE ON CAPITAL CONTRIBUTIONS UNDER SECTION 382(l)(1):  On September 26, 2008, the IRS issued Notice 2008-78, which provides guidance regarding the treatment of capital contributions under section 382(l)(1).  Section 382(l)(1)(A) provides that for purposes of section 382, any capital contribution received by a loss corporation as part of a plan a principal purpose of which is to avoid or increase any limitation under section 382, is not taken into account.  Under section 382(l)(1)(B), any capital contribution made during the two-year period ending on the change date is treated as part of a plan described in section 382(l)(1)(A), except as specifically provided in regulations.  Treasury and the IRS have not yet issued regulations regarding the application of section 382(l)(1).  Notice 2008-78 provides, however, that Treasury and the IRS intend to issue regulations that are expected to set forth certain rules as described in Notice 2008-78.  Taxpayers may rely on the rules provided in Notice 2008-78 in determining whether a capital contribution is part of a plan with respect to an ownership change that occurs in any taxable year ending on or after September 26, 2008. 

• Notice 2008-78 provides that a capital contribution shall not be presumed to be part of a plan for purposes of section 382(l)(1)(A) solely as a result of having been made during the two-year period ending on the change date.
• Notice 2008-78 provides that the determination of whether a capital contribution is part of a plan a principal purpose of which is to avoid or increase any limitation under section 382 generally shall be made under all the facts and circumstances.  
• Notice 2008-78 provides four safe harbors under which a capital contribution will not be considered part of a plan:  
• The first safe harbor includes contributions made by a person who is neither a controlling shareholder nor a related person where no more than 20% of the total value of the loss corporation's outstanding stock is issued in connection with the contribution, the ownership change occurs more than six months after the contribution, and there was no agreement, understanding, arrangement, or substantial negotiations at the time of the contribution regarding a transaction that would result in an ownership change.  
• The second safe harbor includes contributions made by a related party, but only where no more than 10% of the total value of the loss corporation's outstanding stock is issued, the ownership change occurs more than one year after the contribution, and there was no agreement, understanding, arrangement, or substantial negotiations at the time of the contribution regarding a transaction that would result in an ownership change.  
• The third safe harbor includes contributions made in exchange for stock issued in connection with the performance of services, or stock acquired by a retirement plan, under the terms and conditions of Treas. Reg. § 1.355-7(d)(8) or (9), respectively.  
• The final safe harbor includes contributions received on the formation of a loss corporation (unless accompanied by the incorporation of assets with a net unrealized built-in loss) or before the first year from which there is a carryforward of a net operating loss, capital loss, excess credit, or excess foreign taxes (or in which a net unrealized built-in loss arose).
  

For additional information, contact Mark J. Silverman or Lisa M. Zarlenga.

The notice can be accessed here.

INTERNAL REVENUE SERVICE - CIRCULAR 230 DISCLOSURE:
As provided for in Treasury regulations, advice (if any) relating to federal taxes that is contained in this communication (including attachments) is not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any plan or arrangement addressed herein.

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