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Selected 2014 Tax Rate Information William H. Hornberger Jackson Walker, L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214-953-5857 (direct) 214-953-6000 (main) [email protected] NOTE: Employment Taxes Imposed on Wages Tax Rate For 2014, employee OASDI rate is 6.2%; employer OASDI rate is 6.2% 1.45%(HI) Maximum Earnings Base Maximum Tax on Employee Maximum Tax on Employer $117,000 $7,254.00 $7,254.00 No limit No limit No limit • FUTA: 6% of first $7,000 paid by employer (employees do not pay this tax or have it withheld from their pay) 2 Wages, Income • Beginning in 2013: • .9% tax on an individual’s wages in excess of: • $250,000 (joint return) • $125,000 (married filing separately) • $200,000 (others) Self-Employment Income • Beginning in 2013: • .9% tax on an individual’s self-employment income of which is in excess of: • $250,000 (joint return) • $125,000 (married filing separately) • $200,000 (others) 3 Rates on Qualified Dividends and Capital Gains • • • 0% - if such income would otherwise be taxed at a 10% or 15% rate 15% - if such income would be taxed at a 25%, 28%, 33% or 35% rate 20% - if such income would otherwise be taxed at a 39.6% rate: > $450,000 (married filing jointly and surviving spouses) Adjusted for inflation > $400,000 (single filers) beginning in 2014 > $225,000 (married filing separately) Note: RATES ON C CORPORATION If taxable income is: Over-$0 $50,000 $75,000 $100,000 $335,000 $10,000,000 $15,000,000 $18,333,333 But not over-$50,000 $75,000 $100,000 $335,000 $10,000,000 $15,000,000 $18,333,333 -- Tax is: 15% $7,500 + 25% $13,750 + 34% $22,250 + 39% $113,900 + 34% $3,400,000 + 35% $5,150,000 + 38% 35% Of the amount over--0$50,000 $75,000 $100,000 $335,000 $10,000,000 $15,000,000 -0- The tax rate for corporations with taxable income in excess of $15,000,000 is increased by the lesser of (i) 3 percent of such excess, or (ii) $100,000. This essentially means that an additional 3 percent of tax is imposed on taxable income between $15,000,000 and $18,333,333. 4 Tax Rate Schedule TABLE 1 – Married Individuals Filing Joint Returns and Surviving Spouses If Taxable Income Is: The Tax Is: Not over $18,150 10% of the taxable income Over $18,150 but not over $73,800 $1,815 plus 15% of the excess over $18,150 Over $73,800 but not over $148,850 $10,162.50 plus 25% of the excess over $73,800 Over $148,850 but not over $226,850 $28,925 plus 28% of the excess over $148,850 Over $226,850 but not over $405,100 $50,765 plus 33% of the excess over $226,850 Over $405,100 but not over $457,600 $109,587.50 plus 35% of the excess over $405,100 Over $457,600 $127,962.50 plus 39.6% of the excess over $457,600 5 Tax Rate Schedule TABLE 2 – Heads of Households If Taxable Income Is: The Tax Is: Not over $12,950 10% of the taxable income Over $12,950 but not over $49,400 $1,295 plus 15% of the excess over $12,950 Over $49,400 but not over $127,550 $6,762.50 plus 25% of the excess over $49,400 Over $127,550 but not over $206,600 $26,300 plus 28% of the excess over $127,550 Over $206,600 but not over $405,100 $48,434 plus 33% of the excess over $206,600 Over $405,100 but not over $432,200 $113,939 plus 35% of the excess over $405,100 Over $432,000 $123,424 plus 39.6% of the excess over $432,200 6 Tax Rate Schedule TABLE 3 – Unmarried Individuals (other than Surviving Spouses and Heads of Households) If Taxable Income Is: The Tax Is: Not over $9,075 10% of the taxable income Over $9,075 but not over $36,900 $907.50 plus 15% of the excess over $9,075 Over $36,900 but not over $89,350 $5,081.25 plus 25% of the excess over $36,900 Over $89,350 but not over $186,350 $18,193.75 plus 28% of the excess over $89,350 Over $186,350 but not over $405,100 $45,353.75 plus 33% of the excess over $186,350 Over $405,100 but not over $406,750 $117,541.25 plus 35% of the excess over $405,100 Over $406,750 $118,118.75 plus 39.6% of the excess over $406,750 7 Tax Rate Schedule TABLE 4 – Married Individuals Filing Separate Returns If Taxable Income Is: The Tax Is: Not over $9,075 10% of the taxable income Over $9,075 but not over $36,900 $907.50 plus 15% of the excess over $9,075 Over $36,900 but not over $74,425 $5,081.25 plus 25% of the excess over $36,900 Over $74,425 but not over $113,425 $14,462.50 plus 28% of the excess over $74,425 Over $113,425 but not over $202,550 $25,382.50 plus 33% of the excess over $113,425 Over $202,550 but not over $228,800 $54,793.75 plus 35% of the excess over $202,550 Over $228,800 $63,981.25 plus 39.6% of the excess over $228,800 8 Tax Rate Schedule TABLE 5 – Estates and Trusts If Taxable Income Is: The Tax Is: Not over $2,500 15% of the taxable income Over $2,500 but not over $5,800 $375 plus 25% of the excess over $2,500 Over $5,800 but not over $8,900 $1,200 plus 28% of the excess over $5,800 Over $8,900 but not over $12,150 $2,068 plus 33% of the excess over $8,900 Over $12,150 $3,140.50 plus 39.6% of the excess over $12,150 9 3.8% Tax on Net Investment Income • • Applies to individuals, estates and trusts Individuals: 3.8% of lesser of: (1) Net investment income; or (2) Excess of modified adjusted gross income over: • • • • • $250,000 (joint return or surviving spouse) $125,000 (married filing separately) $200,000 (any other case) Estates & Trusts: 3.8% of lesser of (1) Undistributed net investment income; or (2) Excess of adjusted gross income over dollar amount at which highest income tax bracket applicable to an estate or trust begins Tax is subject to individual estimated tax provisions. 10 Alternative Minimum Tax • Exemption Amounts for 2013: • • • • - $80,800 (joint returns or surviving spouses) $51,900 (unmarried individuals other than surviving spouses) $40,400 (married filing separately) $23,100 (estates and trusts) • The 2012 Tax Act indexes the following dollar amounts for inflation: • (1) The dollar amounts dividing the 26- and 28-percent rates • (2) The dollar amounts of the basic AMT exemption • (3) The dollar amounts at which the phase-out of the basic AMT exemptoin amount begins. 11 Selected 2014 Tax Rate Information William H. Hornberger Jackson Walker, L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214-953-5857 (direct) 214-953-6000 (main) [email protected] Choice of Entity Tax Considerations in Entity Choice Nexus and State Tax Due Diligence in M&A Transactions and Multistate Business Models Dallas Estate Planning Council Dallas Country Club Dallas, Texas William H. Hornberger Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214-953-5857 [email protected] Steven D. Moore Jackson Walker L.L.P. 100 Congress Avenue Suite 1100 Austin, Texas 78701 512-236-2074 [email protected] © 2014 William H. Hornberger and Steven D. Moore IRS Circular 230 Notice: The statements contained herein are not intended to and do not constitute an opinion as to any tax or other matter. They are not intended or written to be used, and may not be relied upon, by you or any other person for the purpose of avoiding penalties that may be imposed under any Federal tax law or otherwise. 14 Arrangements Treated as Co-Ownerships for Federal Income Tax Purposes……………………………………………………………………………………… Co-Ownership (Limited Partnership/Individual) of Real Estate…………………………………………………………………………………………………………. General Partnership Structures ……………………………………………………………………………………………………………………………………………... General Partnership the Direct Ownership of Which is Entirely Composed of Natural Persons – Partners for U.S. Federal Income Tax Purposes…………. General Partnership the Direct Ownership of Which is Entirely Composed of Natural Persons – S Corporation for U.S. Federal Income Tax Purposes…... General Partnership Consisting of Natural Persons and Another General Partnership as Partners – Partnership for U.S. Federal Income Tax Purposes… General Partnership with Estate as Partner - Partnership for U.S. Federal Income Tax Purposes………………………………………………………………… General Partnership with Corporations as Partners – Partnership for U.S. Federal Income Tax Purposes……………………………………………………….. General Partnership with Trusts as Partners …………………………………………………………………………………………………………………………….. General Partnership Owned by Husband and Wife as Community Property ………………………………………………………………………………………… Structures Treated as Sole Proprietorships or Divisions of a Corporation or Partnership for Federal Income Tax Purposes…………………………… Sole Proprietorship for Federal Income Tax and Texas Margin Tax Purposes ……………………………………………………………………………………… Single-Member (Individual) Limited Liability Company Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes………………… Single-Member (C Corporation) Limited Liability Company Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes…………… Single-Member (S Corporation) Limited Liability Company Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes…………… Single-Member (Limited Partnership) Limited Liability Company Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes…….. Single-Member (Limited Partnership) Limited Liability Company Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes / Affiliated Group Illustration………………………………………………………………….……………………………………………………………………… Single-Person (Individual) Limited Partnership Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes…………………………. Single-Person (Corporation) Limited Partnership Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes………………………. Single-Person (Limited Partnership) Limited Partnership Owning Operating Business – Disregarded for U.S. Federal Income Tax Purposes……………… Case Study on a Common Tiered Structure …………………………………………………………………………………………………………………………….. Limited Liability Partnership ………………………………………………………………………………………………………………………………………………… Limited Liability Partnership - Illustration …………………………………………………………………………………………………………………………………. Bankruptcy Estate of an Individual…………………………………………………………………………………………………………………………………………. Comptroller’s Position Regarding Treatment of the Bankruptcy Estate of An Individual……………………………………………………………………………. Other Controlling Interest and Combined Reporting Issues ………………………………………………………………………………………………………….. Combined Reporting 2011………………………………………………………………………………………………………………………………………………….. Combined Group Analysis………………………………………………………………………………………………………………………………………………….. Combined Report Membership is BLIND………………………………………………………………………………………………………………………………….. Definition of Controlling Interest,,………………………………………………………………………………………………………………………………………….. Controlling Interest – Example 1 ………………………………………………………………………………………………………………………………………….. Controlling Interest – Example 2 ………………………………………………………………………………………………………………………………………….. Controlling Interest – Example 3 ………………………………………………………………………………………………………………………………………….. Controlling Interest – Example 4 ………………………………………………………………………………………………………………………………………….. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 15 Combined Reporting Issues…………………………………………………………………………………………………………………………………………………… Partnership Capital or Profits Interest…………………………………………………………………………………………………………………..……………..… Selected Additional Limited Partnerships and Limited Liability Company Issues……………………………………………………………………………….. Minority Interest Owners and Calculation of Total Revenue for Combined Report Purposes…………………………………………………………….….….… Selected Community Property Considerations ……………………………………………………………………………………………………….……….….….…. Non-Texas Entity Owning Interest in Oil and Gas Well in Texas…………………………………………………………………………………………………..…. Trusts ………………………………………………………………………………………………………………………………………………………...…..……….……. Grantor Trust with Individual Grantor and Beneficiary…. …………………………………………………………………………………………………………..…. Grantor Trust with Sole Corporate Grantor and Beneficiary ……………………………………………………………………………………………………..…… Complex Trust with Individual Grantor and Multiple Individual Beneficiaries …………………………………………………………………………………..…… Complex Discretionary Trust Example………………………………………………………………………………………………………………….…………..…… Passive Entities ……………………………………………………………………..…………………………………………………………………………………….…. Oil and Gas Example (Sale of Assets)………………………………………………………………………………………………………………….……………….. Oil and Gas Example (Sale of Interests)………………………………………………………………………………………………………………..…………….… Example 1 …………………………………………………………………….…………………………………………………………………………..……………..… Example 2 …………………………………………………….………………………………………………………………………............................…………….… Example 3 …………………………………………………….………………………………………………………………………............................…………….… Example 4 …………………………………………………….………………………………………………………………………............................…………….… Planning for Conversion to a Limited Partnership……………………………………………………………………………………………………..…………….… Joint Operating Arrangements …………………………………………………….……………………………………………………………………..…………….… Joint Operating Agreement ………………………………………………………………………………………………………................................………….…… Active/Passive ……………………………………………………………………….……………………………………………………......................………….…… Cash Purchase of Sub Stock with Section 338(h)(10) Election……………………………………….…………………………………………….………………. Joint & Several Liability ……………………………………………………………………………………………………………………………................................. Joint & Several Liability – Illustration No. 1……………………………………….……………………………………………………......................………………. Joint & Several Liability – Illustration No. 2 ……………………………………….……………………………………………………......................……………… Joint & Several Liability – Illustration No. 3……………………………………….…………………………………………………….......................……………… Major Apportionment Issues for Transaction Attorneys……………………………………………………………………………………................……………… Major Sources of Texas Receipts……………………………………………………………………………………………………………………….…………….….. Selected Statutory References…………………………………………………………………………………………………………………………………………….. Transacting Business in Texas for Purposes of Determining Whether Foreign Entity Must Register to Transact Business in Texas……………………….. Nexus for Texas Franchise Tax Purpose……………………………………………………………………………………………………………………………….. Unitary Business…………………………………………………………………………………………………………………………………………………………… 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 16 Selected Texas Administrative Code References……………………………………………………………………………………………………………………… Nexus for Texas Franchise Tax Purposes……………………………………………………………………………………………………………………………… Unitary Business…………………………………………………………………………………………………………………………………………………………... Selected Comptroller’s Frequently Asked Questions…………………………………………………………………………………………………………………. Unitary Business……………………………………………….. ……………………………………………………………………………………………………........ Selected Other References………………………………………………………………………………………………………………………………………………….. Transacting Business in Texas for Purposes of Determining Whether Foreign Entity Must Register to Transact Business in Texas………………………... Combined Reporting for Texas Franchise Tax Purposes……………………………………………………………………………………………………………… 73 74 77 78 79 80 81 82 CONSIDERATIONS FOR ACQUISITIONS IN A RECOVERING ECONOMY………………………………………………………………………………………….. Taxable Asset Sale by Individual…………………………………………………………………………………………………………………………………………. Forms of Taxable Acquisitions: Direct Purchase of Business Assets from Limited Partnership for Cash………………………………………………………… Forms of Taxable Acquisitions: Direct Purchase of Assets from C Corporation for Cash …………………………………………………………………………. Forms of Taxable Acquisitions: Direct Purchase of Assets from S Corporation for Cash ………………………………………………………………………… Forms of Taxable Acquisitions: Direct Purchase of Assets for Cash and Note …………………………………………………………………………………….. Forms of Taxable Acquisitions: Acquisition of Interest in Single-Member Limited Liability Company for Cash; Cash is Retained by Seller and is not contributed to the LLC ………………………………………………………….…………………………………………………………………………………… Compare: Acquisition of Interest in Single-Member Limited Liability Company for Cash Contributed to Company……………………………………………. Forms of Taxable Acquisitions: 50% Co-Owner’s Acquisition of Other Co-Owner’s Interest in Limited Liability Company……………………………………. Forms of Taxable Acquisitions: 100% of Interests in Multi-Member Limited Liability Company by Unrelated Person………………………………………….. Forms of Taxable Acquisitions: Acquisition of 100% of Partnership Interests in Limited Partnership (Not a Disregarded Entity) by Unrelated Person……. One Person Partnership – Rev. Rul. 2004-77 ………………………………………………………… ……………………………………………………………….. Disregarded Partnership Structure ………………………………………………………….…………………………………………………………………………….. Forms of Taxable Acquisitions: Acquisition of Interest in Disregarded Entity with Assets for Cash from Multiple – Member Limited Partnership…………… Forms of Taxable Acquisitions: Purchase of Less than 50% Interest in Multi-Member Partnership or Limited Liability Company…………………………….. Oil and Gas Example (Sale of Assets) ………………………………………………………… ………………………………………………………………………… Oil and Gas Example (Sale of Interests) ………………………………………………………… ………………………………………………………………………. Sale of Partnership Interest State Law ………………………………………………………… ………………………………………………………………………… Forms of Taxable Acquisitions: Example of Reverse Subsidiary Cash Merger…..………………………………………………………………………………………………………………………. Forms of Taxable Acquisitions: Acquisition of C Corporation – Regular §338 Election …………………………………………………………………………… Cash Purchase of Sub Stock With Section 338(h)(10) Election ………………………………………………………….…………………………………………… Tax-Free Transfer of Assets to Partnership ………………………………………………………….…………………………………………………………………. Tax-Free Transfer of Assets to Corporation ………………………………………………………….…………………………………………………………………. 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 17 Selected Forms of Nontaxable Reorganizations ………………………………………………………………………………………………………………………… 107 Illustration of Forms of Nontaxable Acquisitions: Type A Reorganization……………………………………………………………………………………………. 108 Illustration of Forms of Nontaxable Acquisitions: Type A Reorganization (Merged into Disregarded LLC Owned by P) ………………………………………. 109 Illustration of Forms of Nontaxable Acquisitions: Type B Reorganization ……………………………………………………………………………………………. 110 Illustration of Forms of Nontaxable Acquisitions: Type C Reorganization ……………………………………………………………………………………………. 111 Illustration of Forms of Nontaxable Acquisitions: Type D Acquisitive Reorganization ………………………………………………………………………………. 112 Examples of Forms of Nontaxable Acquisitions …………………………………………………………………………………………………………………………. 113 Example 1 – Partnership Merger ………………………………………………………….………………………………………………………………………………. 114 Example 2 – Form of Merger Provided by Treasury Regulations ……………………………………………………………………………………………………… 115 Example 3 – Assets-Over Form of Merger ………………………………………………………….……………………………………………………………………. 116 Example 4 – Treatment of Interests Over Form of Merger ………………………………………………………….………………………………………….………. 117 Cash Out of Partner as Part of Partnership Merger ………………………………………………………….………………………………………………………….. 118 Nexus and State Tax Due Diligence in M&A Transactions and Multistate Business Models…………………………………………………………………….. 119 Premise – Representation 1………………………………………………………………………………………………………………………………………………… 120 Premise – Representation 2………………………………………………………………………………………………………………………………………………… 121 Sources of Scrutiny…………………………………………………………………………………………………………………………………………………………... 122 “Transacting Business” for Registration…………………………………………………………………………………………………………………………………… 123 Which Entities Must Register……………………………………………………………………………………………………………………………………………….. 124 Nexus = ………………………………………………………………………………………………………………………………………………………………………. 125 “Doing Business” for State Tax Nexus Purposes…………………………………………………………………………………………………………………………. 126 Case Study 1…………………………………………………………………………………………………………………………………………………………………. 127 Case Study 2…………………………………………………………………………………………………………………………………………………………………. 128 Case Study 3…………………………………………………………………………………………………………………………………………………………………. 129 Public Law 86-272……………………………………………………………………………………………………………………………………………………………. 130 Case Study 4…………………………………………………………………………………………………………………………………………………………………. 131 Arrangements Treated as CoOwnerships for Federal Income Tax Purposes Co-Ownership (Limited Partnership / Individual) of Real Estate Limited Partnership A 19 Individual B Undivided 50 % Interest Undivided 50 % Interest Real Property Texas Margin Tax Considerations Federal Income Tax Considerations Cf. Rev. Proc. 2002-22 Ruling Guidelines • • • • • • • • • • • • • • • Tenancy in common ownership Number of co-owners No treatment of co-ownership as an entity Co-ownership agreement Voting Restrictions on alienation Sharing proceeds and liabilities from sale of the property Proportionate sharing of profits and issues Proportionate sharing of debt Options No business activities Management and brokerage documents Leasing agreements Loan agreements Payments to sponsor • • • §171.002(a): Taxable entity “means a partnership . . . joint venture . . . or other legal entity.” Cf. Comp. Rule 3.581(b)(15) (“Partnership – A relationship referred to in Business Organizations Code §152.051 and Revised Partnership Act Article 6132b-2.02.”), Comp. Rule 3.581(b)(6) (“General partnership – A partnership as described in Revised Partnership Act, Article 6132-1.01 et. seq., or Business Organizations Code, Title 4, Chapter 152, or an equivalent statute in another jurisdiction.”). Cf. §171.1011(c)(3) (“Except as provided by this section and subject to Section 171.1014, for the purpose of computing its taxable margin under Section 171.101, the total revenue of a taxable entity is . . . for a taxable entity other than a taxable entity treated for federal income tax purposes as a corporation or partnership, an amount determined in a manner substantially equivalent to the amount for subdivision (1) or (2) determined by rules that the Comptroller shall adopt.”); see Tex. Bus. Org. Code §152.052 (rules for determining if partnership created). General Partnership Structures General Partnership the Direct Ownership of Which is Entirely Composed of Natural Persons – Partnership for U.S. Federal Income Tax Purposes Mr. B Mrs. C Mr. A Ms. D General Partnership Texas Operating Business Federal Income Tax Considerations • General Partnership should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • • • Should not be a taxable entity. (§171.0002(b)(2).) See Comp. Rule 3.581(d)(2) (nontaxable entities include “general partnerships where direct ownership is composed entirely of natural persons, and the liability of those persons is not limited (e.g. by registration as a limited liability partnership) under a statute of this state or another state.”). See also Comp. FAQs, Rule 3.581, Q&A 2 (“The revised franchise tax does not apply to: sole proprietorships (except the tax does apply to single member LLCs filing as a sole proprietor for federal income tax purposes); general partnerships directly and solely owned by natural persons (except the tax does apply to all limited liability partnerships); entities exempt under Subchapter B of Chapter 171; and passive entities (as defined under TTC 171.0003).”); Comp. FAQs, Rule 3.581, Q&A 3 (“A general partnership directly and entirely owned by natural persons is a not a taxable entity.”). 21 General Partnership the Direct Ownership of Which is Entirely Composed of Natural Persons – S Corporation for U.S. Federal Income Tax Purposes Mr. B Mrs. C Mr. A Ms. D General Partnership [S Corporation for Federal Income Tax Purposes] Texas Operating Business Federal Income Tax Considerations • Example assumes entity is treated as an S corporation. Texas Margin Tax Considerations • Should not be a taxable entity. (§171.0002(b)(2).) 22 General Partnership With Natural Persons and Another General Partnership as Partners – Partnership for U.S. Federal Income Tax Purposes Mr. B Mrs. C 23 Ms. D Mr. E Ms. F Mr. A EF General Partnership ABCD General Partnership Texas Operating Business Federal Income Tax Considerations • General Partnership should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • Comptroller’s position is that the ABCD General Partnership is a taxable entity. See Comp. FAQs, Rule 3.581, Q&A 5 (“Is a general partnership whose partners consists of natural persons and one general partnership a taxable entity? Yes, a general partnership must be composed directly and entirely of natural persons to be a non- taxable entity.”). 24 General Partnership with Estate as Partner – Partnership for U.S. Federal Income Tax Purposes Individual A Individual B Individual C Date of Death: 8/1/07 1/3 1/3 1/3 General Partnership (“GPS”) Estate of Individual C 8/1/07 to 12/31/07 Texas Operating Business Federal Income Tax Considerations • GPS should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • • GPS should not be a taxable entity because direct ownership of GPS is entirely composed of human beings or the estate of a human being. See also Comp. FAQs, Rule 3.581, Q&A 6 (“The estate of a natural person is not a taxable entity. Therefore, a general partnership composed entirely of natural persons will not become a taxable entity because of the estate of a deceased partner.”). 25 General Partnership with Corporations as Partners – Partnership for U.S. Federal Income Tax Purposes Corporation A Corporation B 50% GP 50% GP General Partnership (“GPS”) Texas Operating Business Federal Income Tax Considerations • GPS should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • GPS should be a taxable entity because the direct ownership is not entirely comprised of natural persons. General Partnership with Trusts as Partners 26 A’s Children Sole Beneficiaries Individual A Individual B Grantor & Sole Beneficiary Individual C 20% 20% Grantor Trust 20% 20% 20% Texas General Partnership [or Joint Venture] Texas Operating Business Federal Income Tax Considerations • General partnership or joint venture will be treated as a partnership unless election made to treat entity as a corporation. (See Treas. Reg. § 301.7701-3.) Texas Margin Tax Considerations • Unless entity is a passive entity, it should be classified as a taxable entity for Texas margin tax purposes because the entity is not composed solely of natural persons. See §171.0002(b)(2) (“‘Taxable entity’ does not include: (1) a sole proprietorship; (2) a general partnership: (A) the direct ownership of which is entirely composed of natural persons; and (B) the liability of which is not limited under a statute of this state or another state, including by registration as a limited liability partnership;”); §171.0001(11-a) (“‘Natural person’ means a human being or the estate of a human being. The term does not include a purely legal entity given recognition as the possessor of rights, privileges, or responsibilities, such as a corporation, limited liability company, partnership, or trust.”); Comp. Rule 3.581(b)(14) (same definition of “natural person” as in §171.0001(11-a)). 27 General Partnership Owned by Husband and Wife as Community Property Community Property Husband Wife 50% 50% General Partnership Texas Operating Business Federal Income Tax Considerations • Husband and wife can elect to treat as a disregarded entity or as a partnership for federal income tax purposes (Rev. Proc. 200269.) Texas Margin Tax Considerations • • Should not be a taxable entity. See also Comp. Priv. Ltr. Rul. 200609763L (Sept. 8, 2006) (“If your small business is legally a sole proprietorship or a general partnership owned solely by you and your husband, it will not be subject to the franchise tax under HB 3.”). Structures Treated as Sole Proprietorships or Divisions of a Corporation or Partnership for Federal Income Tax Purposes 29 Sole Proprietorship for Federal Income Tax and Texas Margin Tax Purposes Individual Texas Operating Business Federal Income Tax Considerations • Texas operating business reported on federal income tax return of individual. Texas Margin Tax Considerations • • • Should not be a taxable entity. (§171.0002(b)(1).) See Comp. Rule 3.581(b)(23) (“Sole proprietorship – A natural person carrying on business, if the business is not formed in a manner that limits the liability of the owner. It does not include other entities treated as sole proprietorships for federal tax purposes, unless by statute the form of entity does not afford limited liability protection to the owner and it does not include single member limited liability companies.”). See also Comp. FAQs, Rule 3.581, Q&A 9 (“A sole proprietorship that is not legally organized in a manner that limits its liability is not a taxable entity. A single member limited liability company filing as a sole proprietor for federal income tax purposes is a taxable entity.”). 30 SINGLE-MEMBER (INDIVIDUAL) LIMITED LIABILITY COMPANY OWNING OPERATING BUSINESS – DISREGARDED FOR U .S. FEDERAL INCOME TAX PURPOSES Individual Texas Limited Liability Company Texas Operating Business Federal Income Tax Considerations • Disregarded for federal income tax purposes unless election made to treat as a corporation (Treas. Reg. § 301.7701-3(a).) Texas Margin Tax Considerations • • • • Should be a taxable entity. (§171.0002(a)) §171.0002(d) confirms. See Comp. Rule 3.581(d)(1) (nontaxable entities include “sole proprietorships (does not include single member limited liability companies”)). See also Comp. Priv. Ltr. Rul. 200609763L (Sept. 8, 2006) (“Please keep in mind that a single member limited liability company (LLC) owned by a natural person is often treated as a sole proprietorship for federal income tax reporting purposes. This single member LLC is a taxable entity under current law and will be considered a taxable entity under HB 3.”). SINGLE-MEMBER (C CORPORATION) LIMITED LIABILITY COMPANY OWNING OPERATING BUSINESS – DISREGARDED FOR U.S. FEDERAL INCOME TAX PURPOSES 31 C Corporation (“P”) LLC Texas Operating Business Texas Margin Tax Considerations Federal Income Tax Considerations • LLC is disregarded for federal income tax purposes unless corporate treatment elected. (Treas. Reg. § 301.7701-3.) • Do LLC and P comprise a combined group? a) §171.1014(a) (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined group report.); see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group: > 50% test (§§171.0001(1); 171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”) c) Unitary business? • See also Comp. FAQs, Rule 3.590, Q & A 2 (“What types of entities are included in a combined group? A combined group can include any taxable entity, including but not limited to, passthrough entities, LLCs, S corporations and disregarded entities.”). SINGLE-MEMBER (S CORPORATION ) LIMITED LIABILITY COMPANY OWNING OPERATING BUSINESS – DISREGARDED FOR FEDERAL INCOME TAX PURPOSES 32 S Corporation (“P”) LLC Texas Operating Business Federal Income Tax Considerations • LLC is disregarded for federal income tax purposes unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • Do LLC and P comprise a combined group? a) §171.1014(a) (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined group report.); see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group: > 50% test (§§171.0001(1); 171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”) c) Unitary business? SINGLE-MEMBER (LIMITED PARTNERSHIP) LIMITED LIABILITY COMPANY OWNING OPERATING BUSINESS – DISREGARDED FOR FEDERAL INCOME TAX PURPOSES Limited Liability Company (“LLCGP”) 33 A 33% LP B B 33% LP 1% GP C 33% LP Limited Partnership A 100% Disregarded Limited Liability Company (“LLCSub”) Texas Operating Business Federal Income Tax Considerations • • • LLC should be disregarded unless corporate treatment elected. (Treas. Reg. §301.7701-3.) A should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Treatment of LLCGP depends upon number of members and whether entity classification election is made. Texas Margin Tax Considerations • • Do LLCSub, Limited Partnership A, and LLCGP comprise a combined group? a) §171.1014(a) (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined group report.); see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group: > 50% test (§§171.0001(1); 171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”); see Comp. Rule 3.590(b)(4)(E)(“Except as otherwise provided, an entity is owned when a controlling interest is directly held or the interest is constructively owned. An individual constructively owns stock that is owned by his or her spouse.”) c) Unitary business? See also Comp. FAQs, Rule 3.590, Q & A 8 (“In determining a combined group, is there attribution of ownership between family members? An individual constructively owns stock or interest that is owned by his or her spouse. There is no other attribution of ownership between family members.”). SINGLE-MEMBER (LIMITED PARTNERSHIP) LIMITED LIABILITY COMPANY OWNING OPERATING BUSINESS – DISREGARDED FOR FEDERAL INCOME TAX PURPOSES / AFFILIATED GROUP ILLUSTRATION 34 D 50% LP E 50% LP Limited Liability Company (“LLCGP”) 33% LP 33% LP 1% GP F 33% LP Limited Partnership A 100% Disregarded Limited Liability Company (“LLCSub” ) Federal Income Tax Considerations • • • LLC should be disregarded unless corporate treatment elected. (Treas. Reg. §301.7701-3.) A should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) LLCGP should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Operating Business Texas Margin Tax Considerations • Do LLCSub, Limited Partnership A, and LLCGP comprise a combined group? a) §171.1014(a): (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined report; see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group (“means a group of one or more entities in which a controlling interest is owned by a common owner or owners, either corporate or noncorporate, or by one or more of the member entities”). (§171.0001(1): > 50% test (§171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group-Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”); see also Comp. Rule 3.590(b)(4)(E)(“Except as otherwise provided, an entity is owned when a controlling interest is directly held or the interest is constructively owned. An individual constructively owns stock that is owned by his or her spouse.”). c) Unitary business? SINGLE PERSON (INDIVIDUAL) LIMITED PARTNERSHIP OWNING OPERATING BUSINESS– DISREGARDED FOR U.S. FEDERAL INCOME TAX PURPOSES 35 Individual A 100% LP LLC (disregarded entity ) GP Limited Partnership Texas Operating Business Federal Income Tax Considerations • • Limited partnership disregarded for federal income tax purposes unless corporate treatment elected (Rev. Rul. 2004-77) Operating business reported on federal income tax return of Individual A Texas Margin Tax Considerations • Under § 171.0002(a), a “taxable entity” includes a limited partnership. Cf. Comp. Rule 3.581(b)(23) (“Sole Proprietorship – A natural person carrying on business if the business is not formed in a manner that limits the liability of the owner. It does not include other entities treated as sole proprietorships for federal income tax purposes unless by statute the form of entity does not afford limited liability protection to the owner and it does not include single member limited liability companies.”). 36 SINGLE PERSON (CORPORATION) LIMITED PARTNERSHIP OWNING OPERATING BUSINESS – DISREGARDED FOR U.S. FEDERAL INCOME TAX PURPOSES Delaware corporation (“Delco”) 100% LP LLC (disregarded entity) GP Limited Partnership (“LP”) Texas Operating Business Federal Income Tax Considerations • • Limited partnership disregarded for federal income tax purposes unless corporate treatment elected. (Rev. Rul. 2004-77.) Operating business reported on corporate tax return of Delaware corporation. Texas Margin Tax Considerations • • • Do Delco, LLC and LP comprise a combined group? a) §171.1014(a) (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined group report.); see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group: > 50% test (§§171.0001(1); 171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”) c) Unitary business? See also Comp. FAQs, Rule 3.581, Q&A 13 (“The taxpayer is a disregarded entity for federal purposes. Do they have to file franchise tax if they have nexus in Texas? Yes. The determination of responsibility for Texas franchise tax is based on the legal formation of an entity. An entity's treatment for federal income tax purposes does not determine its responsibility for Texas franchise tax. Therefore, each taxable entity that is organized in Texas or doing business in Texas is subject to franchise tax, even if it is treated as a disregarded entity for federal income tax purposes. The entity is required to file a separate franchise tax report unless it is a member of a combined group. If the entity is a member of a combined group, the reporting entity may include the disregarded entity with the parent's information; in that event, both entities are presumed to have nexus.”). See also Comp. FAQs, Rule 3.590, Q & A 9 (“Does a combined group include entities meeting the ownership and unitary criteria if the entity does not have nexus in Texas? Yes, an entity meeting the ownership and unitary criteria is included in the combined group regardless of whether the entity has nexus in Texas.”). SINGLE-PERSON (LIMITED PARTNERSHIP) LIMITED PARTNERSHIP OWNING OPERATING BUSINESS – DISREGARDED FOR U.S. FEDERAL INCOME TAX PURPOSES 37 A Limited Liability Company (“LLCGP”) 33% LP B B 33% LP 1% GP C 33% LP Limited Partnership A 100% Disregarded Limited Liability Company (“LLCSub”) 99% LP 1% GP Limited Partnership (“LPSub”) Texas Operating Business Federal Income Tax Considerations • • LPSub should be disregarded for federal income tax purposes unless corporate treatment elected. (Treas. Reg. §301.7701-3.) LLCSub should be disregarded unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • Do LPSub, LLCSub, Limited Partnership A and LLCGP comprise a combined group? a) §171.1014(a) (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined group report.); see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group: > 50% test (§§171.0001(1); 171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”) c) Unitary business? 38 Case Study on a Common Tiered Structure A B C D PA1 PA2 PA3 PA4 $1M 25% $1.5M $1M $.5M 25% 30% 20% LLC or LP Texas Cardiology Practice Group Annual Gross receipts = $7 million (includes $1M medicare) Staff Compensation = $2 million ½ of the Medicare receipts are paid through a 501(c)(3) hospital Limited Liability Partnership 40 Limited Liability Partnership - Illustration Individual C Individual D Individual B Individual E Individual A Individual F Limited Liability Partnership (“LLP”) Federal Income Tax Considerations • LLP should be treated as partnership unless corporate treatment elected. (Treas. Reg. §§301.7701-3(a), 301.7701-3(b)(1).). Texas Margin Tax Considerations • • • Taxable entity (§171.0002(a)); see also §171.0002(b)(2)). See also Comp. FAQs, Rule 3.581, Q&A 4 (“Is a general partnership owned directly and entirely by natural persons that elects limited liability status a taxable entity? Yes, even if a general partnership is composed entirely of natural persons, if it elects limited liability status it is a taxable entity.”). But cf. Comp. FAQs, Rule 3.582, Q & A 2 (“Can a limited liability partnership qualify as a passive entity? Yes. General, limited and limited liability partnerships may qualify as a passive entity.”). Bankruptcy Estate of an Individual 42 Comptroller’s Position Regarding Treatment of the Bankruptcy Estate of An Individual Individual A Individual A’s Bankruptcy Estate • See also Comp. FAQs, Rule 3.581, Q&A 16 (“Is a bankruptcy estate of an individual a taxable entity? The bankruptcy estate of an individual is a separate taxable entity for federal tax reporting. As a result, the estate will not be considered an extension of a natural person. If the estate holds an interest in a general partnership, the partnership will be a taxable entity.”). Other Controlling Interest and Combined Reporting Issues 44 Combined Reporting 2011 May 1, 2011 Individual A 100% LP B Inc. 100% LP 100% LP 100% Interest X Filing LLC Entity Y LLC X & Y filed Combined Texas Franchise Report last three years X was filing entity Calendar year taxpayers X LLC Sellers file for Company X & Y file combined report 1/1/11 to 5/1/11 Y files stand-alone report 5/2/11 to 12/31/11 B responsible to file combined report in combined X from 5/2/11 to 12/31/11 45 COMBINED GROUP ANALYSIS Identify all entities subject to a “controlling interest” Identify and exclude non-taxable entities (exclude passives on annual basis) Determine scope of “unitary” business and split group if appropriate = COMBINED GROUP 46 COMBINED REPORT MEMBERSHIP IS BLIND To NEXUS [Except for possible impact on unitary test] 47 Definition of Controlling Interest Controlling Interest for Partnership Controlling Interest for Limited Liability Company > 50%, owned directly or indirectly, of the capital, profits, or beneficial interest in the partnership > 50%, owned directly or indirectly, of the total membership interest of the limited liability company or > 50%, owned directly or indirectly, of the beneficial ownership interest in the membership interest of the limited liability company Partnership Limited Liability Company Controlling Interest for Corporation Controlling Interest for Trust > 50%, owned directly or indirectly, of the total combined voting power of all classes of stock > 50%, owned directly or indirectly, of the [capital, profits, or] beneficial interest in the trust or > 50% owned directly or indirectly, of the beneficial ownership interest in the voting stock of the corporation Trust Corporation Controlling Interest Example 1 A, Inc. 60% 10% B, Inc. 41% C, Inc. • A controls B & C 48 49 Controlling Interest Example 2 A, Inc. 15% 10% B, Inc. 90% C, Inc. • A does not control B or C • B controls C 50 Controlling Interest Example 3 A 100% 1 Inc. 100% 2 Inc. 10% 100% 3 Inc. 10% 100% 4 Inc. 10% 10% 100% 100% 6 Inc. 5 Inc. 10% 100% 10% 100% 8 Inc. 7 Inc. 10% 100% 10% B LP • A controls 1 Inc. through 10 Inc. • A controls B 10% 100% 9 Inc. 10 Inc. 10% Controlling Interest Example 4 A, Inc. 70% 40% B, LP 60% C, LLC • A controls B & C 51 52 Combined Reporting Issues A B 51% A 49% B 49% X, Inc. 51% Y, Inc. See Comp. Rule 3.590(b)(1) (“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”) Is this “one or more entities in which” more than 50% is “owned by a common owner or owners”? Comp. Prop. Rule 3.590(b)(4)(B)(vii) • (vii) Individual A and Individual B each owns 50% of Partnership X. Individual A and Individual B each also owns 50% of Partnership Y. Individual A and Individual B are not husband and wife. Since neither individual owns more than 50% of each partnership, neither individual has a controlling interest in the partnerships. A 50% B 50% 50% Partnership X 50% Partnership Y 53 Partnership Capital or Profits Interest LLC A LLC B 59.99% capital 48.99% profit LLC .01% GP Capital and profits • 40% capital 52% profit Limited Partnership See Comp. Rule 3.590(b)(4)(F)(“ If an entity is a member of more than one affiliated group, the entity is treated as a member of the affiliated group (or part thereof) with respect to which it has a unitary relationship. If the entity has a unitary relationship with more than one of those affiliated groups, it shall elect to be treated as a member of only one group. The election shall remain in effect until the unitary business relationship between the entity and the other members ceases, or unless revoked with approval of the comptroller.”). Selected Additional Limited Partnerships and Limited Liability Company Issues 55 Minority Interest Owners and Calculation of Total Revenue for Combined Report Purposes BigCo Individual Partner A 100% Individual Partner B 79% LP LLC 10% LP 1% GP 10% LP LP Texas Operating Business Federal Income Tax Considerations • • L.P. should be treated as a partnership unless corporate treatment elected. (Treas. Reg. §301.7701-3.) LLC should be disregarded unless corporate treatment elected. (Treas. Reg. §301.7701-3.) Texas Margin Tax Considerations • Do LP, LLC and BigCo comprise a combined group? a) §171.1014(a) (“Taxable entities” that are part of an affiliated group engaged in a unitary business are required to file a combined group report.); see also Comp. Rule 3.590(b)(2)(“Combined group--Taxable entities that are part of an affiliated group engaged in a unitary business and that are required to file a combined group report under Tax Code, §171.1014.”). b) Affiliated group: > 50% test (§§171.0001(1); 171.0001(8).); see Comp. Rule 3.590(b)(1)(“Affiliated group--Entities in which a controlling interest is owned by a common owner, either corporate or noncorporate, or by one or more of the member entities.”) c) Unitary business? d) If LP, LLC and BigCo comprise a combined group, how much of L.P.’s revenues are includable in the total revenues of the combined group? 56 SELECTED COMMUNITY PROPERTY CONSIDERATIONS: COMPARE Individual H community interest Individual W Individuals H&W Texas Limited Liability Company #1 Texas Limited Liability Company #2 Individual H community interest Individuals H&W Individual W 100% 100% 100% LP Texas Limited Liability Company #3 0% GP Texas Limited Liability Company #4 community interest Texas Limited Partnership #1 0% GP Federal Income Tax Considerations • Under Rev. Proc. 2002-69, H & W can elect to treat entities as disregarded or as partnerships for federal income tax purposes. 100% Texas Limited Partnership #2 Texas Margin Tax Considerations • • • • Texas Limited Liability companies #1 through #4 should be “taxable entities.” Texas Limited Partnerships #1 and #2 should be taxable entities. Do Texas Limited Liability Company #3 and Texas Limited Partnership #1 comprise a combined group? Do Texas Limited Liability Company #4 and Texas Limited Partnership #2 comprise a combined group? 57 Non-Texas Entity Owning Interest in Oil and Gas Well in Texas Non-Texas Entity Oil and Gas Well in Texas • See also Comp. FAQs, Rule 3.581, Q&A 12 (“Is a non-Texas entity that owns a royalty interest in an oil and gas well in Texas subject to the franchise tax?” Yes. A royalty interest in an oil and gas well is considered an interest in real property. Therefore a non-Texas entity that owns a royalty interest in an oil and gas well in Texas is considered to own real property in Texas and is subject to the franchise tax unless it is a non-taxable entity.”); Comp. Rul. 3.582 (rules for qualifying as a passive entity). Trusts 59 Grantor Trust with Individual Grantor and Beneficiary Individual A (Grantor and Beneficiary Grantor Trust (as defined by I.R.C. §671) Federal Income Tax Considerations • Is the trust an ordinary trust (as defined in Treas. Reg. §301.77014(a)) or a business trust (as defined in Treas. Reg. §301.7701-4(b))? • Section 301.7701-4(a) of the regulations states that, in general, the term “trust” as used in the Internal Revenue Code refers to an arrangement created by will or by an inter vivos declaration whereby trustees take title to property for the purpose of protecting or conserving it for the beneficiaries under the ordinary rules applied in chancery or probate courts. • Section 301.7701-4(b) explains that business trusts are not classified as trusts for purposes of the Code because they are not simply arrangements to protect or conserve property for the beneficiaries. Rather, business trusts generally are created by the beneficiaries simply as a device to carry on a profit-making business which normally would have been carried on through business organizations that are classified as corporations or partnerships under the Internal Revenue Code. Consequently, business trusts are classified by reference to the principles set forth in sections 301.7701-2 and 301.7701-3. • If entity is a trust (other than a business trust) grantor treated as owner of trust and grantor includes income and deductions of trust. (I.R.C. §671; Treas. Reg. § §1.671-1, 1.671-2.) Texas Margin Tax Considerations • Entity is not a taxable entity if trust is not a business trust. (§171.0002(c)(1) (“’Taxable entity’ does not include an entity that is . . . A grantor trust as defined by Sections 671 and 7701(a)(30)(E), Internal Revenue Code, all of the grantors ad beneficiaries of which are natural persons or charitable entities as described in Section 501(c)(3), Internal Revenue Code, excluding a trust taxable as a business entity pursuant to Treasury Regulation Section 301.7701-4(b).”). 60 Grantor Trust with Sole Corporate Grantor and Beneficiary Sole Corporate (Non-Charitable) Grantor and Beneficiary Grantor Trust (as defined by I.R.C. §671) Texas Margin Tax Considerations • • Should be a taxable entity because grantor and beneficiary are not natural persons. Is the trust a passive entity? 61 Complex Trust with Individual Grantor and Multiple Individual Beneficiaries Multiple Individual Beneficiaries Individual A Grantor Complex Trust Texas Margin Tax Considerations • • Is the complex trust a taxable entity? See §171.0002(a) ("Except as otherwise provided by this section, 'taxable entity' means a partnership, limited liability partnership, corporation, banking corporation, savings and loan association, limited liability company, business trust, professional association, business association, joint venture, joint stock company, holding company, or other legal entity."); see also Comp. FAQs, Rule 3.581, Q&A 15 (“Are trusts subject to the franchise tax? Yes; unless the trust falls under one of the statutory exclusions in TTC 171.0002(c) as a non-taxable entity, it is a taxable entity.”). Is the trust a passive entity? Cf. Comp. Rule 3.582(c). 62 Complex Discretionary Trust Example Beneficiary A Beneficiary B Beneficiary C LLC Complex Discretionary Trust • Does Beneficiary A have a “controlling interest” in the trust and in LLC? Cf. Comp. Rule 3.590(b)(4)(A)(ii) (“controlling interest means … for a partnership, association, trust or other entity other than a limited liability company, more than 50%, owned directly or indirectly, of the capital, profits, or beneficial interest in the partnership, association, trust, or other entity”); Comp. Rule 3.590(b)(4)(A)(iii) (“controlling interest means … for a limited liability company, either more than 50%, owned directly or indirectly, of the total membership interest of the limited liability company or more than 50%, owned directly or indirectly, of the beneficial ownership interest in the membership interest of the limited liability company”). Passive Entities Oil and Gas Example (Sale of Assets) Seller See Comp. Rul 3.582(c)(1) (“to qualify as a passive entity, the entity must be one of the following for the entire period on which the tax is based: (A) general partnership; (B) limited partnership; (C) limited liability partnership; or (D) trust, other than a business trust;”) • See Comp. Rule 3.582(c)(2) (“at least 90% of an entity’s federal gross income for the period on which margin is based must consist of the following sources of income: (C) net capital gains from the sale of real property. . . (D) royalties from mineral properties, bonuses from mineral properties, delay rental income from mineral properties and income from other nonoperating mineral interests including nonoperating working interests not described in subsection (d)(2) of this section.”) Purchaser A B C Texas Limited Partnership Texas Limited Partnership Texas Limited Partnership 59% LP 32.333% LP 33.333% LP Texas LLC (“BLLC”) Texas LLC (“ALLC”) 1% GP Texas Limited 20% LP Partnership (classified area partnership for federal income tax purposes) (“Parent LP”) Texas LLC (“PLLC”) 33.333% LP Texas Limited Partnership (“Purchaser”) 1% GP 20% LP • cash Royalty Interests Texas LLC (“S1LLC”) 1% GP 99% LP Texas limited partnership (“SubLP1”) Texas LLC (“S2LLC”) • See Comp. Rule 3.582(f)(1) (“Activities that do not constitute an active trade or business: (1) Ownership of a royalty interest of a non-operating working interest in mineral rights.”) • See also Comp. FAQs, Rule 3.581, Q&A 12 (“Is a non-Texas entity that owns a royalty interest in an oil and gas well in Texas subject to the franchise tax?” Yes. A royalty interest in an oil and gas well is considered an interest in real property. Therefore a non-Texas entity that owns a royalty interest in an oil and gas well in Texas is considered to own real property in Texas and is subject to the franchise tax unless it is a nontaxable entity.”); Comp. Rul. 3.582 (rules for qualifying as a passive entity). • See also Comp. FAQs, Rule 3.590, Q & A 4 (“Can a passive entity be part of a combined group? No, a passive entity cannot be included in a combined group; however, a member of a combined group will include in total revenue the pro rata share of net income from a passive entity to the extent it was not included in the margin of another taxable entity.”). cash Texas limited partnership (“SubLP2”) [Assume nonoperator] cash Pipeline Producing Oil & Gas Leases • For federal income tax purposes, who is the taxpayer? See Rev. Rul. 2004-77 • For Texas margin tax purposes, is Parent LP a passive entity? See Tex. Tax Code Ann. § 171.0003(a) (“An entity is a passive entity only if: (1) the entity is a general or limited partnership or a trust, other than a business trust; (2) during the period on which margin is based, the entity's federal gross income consists of at least 90 percent of the following income: . . . (C) capital gains from the sale of real property . . . and (3) the entity does not receive more than 10 percent of its federal gross income from conducting an active trade or business.”). 64 • 65 Oil and Gas Example (Sale of Interests) Seller • See Comp. Rul 3.582(c)(1) (“to qualify as a passive entity, the entity must be one of the following for the entire period on which the tax is based: (A) general partnership; (B) limited partnership; (C) limited liability partnership; or (D) trust, other than a business trust;”) • See Comp. Rule 3.582(c)(2) (“at least 90% of an entity’s federal gross income for the period on which margin is based must consist of the following sources of income: (C) net capital gains from the sale of real property. . . (D) royalties from mineral properties, bonuses from mineral properties, delay rental income from mineral properties and income from other nonoperating mineral interests including nonoperating working interests not described in subsection (d)(2) of this section.”) Purchaser A B C Texas Limited Partnership Texas Limited Partnership Texas Limited Partnership 59% LP 32.333% LP 33.333% LP Texas LLC (“BLLC”) Texas LLC (“ALLC”) 1% GP Texas Limited 20% LP Partnership (classified area partnership for federal income tax purposes) (“Parent LP”) Texas LLC (“PLLC”) 1% GP 20% LP 33.333% LP Texas Limited Partnership (“Purchaser”) • • cash Royalty Interests Texas LLC (“S1LLC”) 99% LP 1% GP Texas limited partnership (“SubLP1”) • Texas LLC (“S2LLC”) • Texas limited partnership (“SubLP2”) [Assume nonoperator] Producing Oil & Gas Leases Pipeline • • • • • For federal income tax purposes, who is the taxpayer? See Rev. Rul. 2004-77 • For Texas margin tax purposes, is SubLP1 a passive entity? SubLP2? ParentLP? See Tex. Tax Code Ann. § 171.0003(a) (“An entity is a passive entity only if: (1) the entity is a general or limited partnership or a trust, other than a business trust; (2) during the period on which margin is based, the entity's federal gross income consists of at least 90 percent of the following income: . . . (C) capital gains from the sale of real property . . . and (3) the entity does not receive more than 10 percent of its federal gross income from conducting an active trade or business.”). See Comp. Rule 3.582(b)(10) (definition of “Security”) (A) an instrument defined by Internal Revenue Code, §475(c)(2), where the holder of the instrument has a non-controlling interest in the issuer/investee; (B) an instrument described by Internal Revenue Code, §475(e)(2)(B), (C), (D); (C) an interest in a partnership where the investor has a non-controlling interest in the investee; (D) an interest in a limited liability company where the investor has a non-controlling interest in the investee; or (E) a beneficial interest in a trust where the investor has a non-controlling interest in the investee. • Tex. Tax Code Ann. § 171.0003(a) (“An entity is a passive entity only if: (1) the entity is a general or limited partnership or a trust, other than a business trust; (2) during the period on which margin is based, the entity's federal gross income consists of at least 90 percent of the following income: (A) dividends, interest, foreign currency exchange gain, periodic and nonperiodic payments with respect to notional principal contracts, option premiums, cash settlement or termination payments with respect to a financial instrument, and income from a limited liability company; (B) distributive shares of partnership income to the extent that those distributive shares of income are greater than zero; (C) capital gains from the sale of real property, gains from the sale of commodities traded on a commodities exchange, and gains from the sale of securities; and (D) royalties, bonuses, or delay rental income from mineral properties and income from other nonoperating mineral interests; and (3) the entity does not receive more than 10 percent of its federal gross income from conducting an active trade or business.”); Tex. Tax Code Ann. § 171.0003(b) (“The income described by Subsection (a)(2) does not include: (1) rent; or (2) income received by a nonoperator from mineral properties under a joint operating agreement if the nonoperator is a member of an affiliated group and another member of that group is the operator under the same joint operating agreement.”). • Comp. Rule 3.582(c) (“Qualification as a passive entity: (1) to qualify as a passive entity, the entity must be one of the following for the entire period on which the tax is based: (A) general partnership; (B) limited partnership; (C) limited liability partnership; or (D) trust, other than a business trust; and (2) at least 90% of an entity's federal gross income for the period on which margin is based must consist of the following sources of income: (A) dividends, interest, foreign currency exchange gain, periodic and nonperiodic payments with respect to notional principal contracts, option premiums, cash settlements or termination payments with respect to a financial instrument, and income from a limited liability company; (B) distributive shares of partnership income to the extent that those distributive shares of income are greater than zero; (C) net capital gains from the sale of real property, net gains from the sale of commodities traded on a commodities exchange, and net gains from the sale of securities; and (D) royalties from mineral properties, bonuses from mineral properties, delay rental income from mineral properties and income from other nonoperating mineral interests including nonoperating working interests not described in subsection (d)(2) of this section.”); Comp. Rule 3.582(d) (“The income described by subsection (c)(2) of this section, does not include: (1) rent; or (2) income received by a nonoperator from mineral properties under a joint operating agreement if the nonoperator is a member of an affiliated group and another member of that group is the operator under the same joint operating agreement.”); • Comp. FAQs, Rule 3.582, Q&A 1 (“An entity is considered passive if it is a general, limited or limited liability partnership, or a non-business trust and the entity's federal gross income during the period on which margin is based consists of at least 90% of the following income: dividends, interest, foreign currency exchange gain, periodic and nonperiodic payments with respect to notational principal contracts, option premiums, cash settlement or termination payments with respect to a financial instrument, and income from a limited liability company; distributive shares of partnership income to the extent that those distributive shares of income are greater than zero; net capital gains from the sale of real property, net gains from the sale of commodities traded on a commodities exchange, and net gains from the sale of securities; and royalties from mineral properties, bonuses from mineral properties, delay rental income from mineral properties and income from other non-operating mineral interests. * * * Rent is not considered passive income for the Texas franchise tax.”). EXAMPLE 1 W H Children FLP Apartment Complex $50K Rent Mutual Funds $400K Annual Dividends and Interest Passive : 11% of Revenues is from rent 66 67 EXAMPLE 2 W H Children LLC Mutual Funds Apartment Complex $400K Annual Dividends Capital Gains $30K Rent Passive? 68 EXAMPLE 3 Individual LLC LLC LLC Limited Partnership Operator Operating Business Property (nonoperator) JOA JOA Other Unrelated Parties 69 EXAMPLE 4 Individual (“I”) LLC LLC LLC Limited Partnership LLC Complex Trust for I’s Wife and I’s kids LLC Limited Partnership Unrelated Parties Operating Business Operator working interest Unrelated Parties Operator working interest JOA Other Unrelated Parties Complex Trust for I’s kids LLC Operator Unrelated Parties working interest JOA JOA Mineral Interest (non-operator) Unrelated Operator JOA Cf. Comp. Rule 3.582(d)(2)(“passive income does not include … income received by a nonoperator from mineral properties under a joint operating agreement if the nonoperator is a member of an affiliated group and another member of that group is the operator under the same joint operating agreement); Comp. Rule 3.590(B)(4)(A)(ii)(“controlling interest means … for a partnership, association, trust or other entity other than a limited liability company, more than 50%, owned directly or indirectly, of the capital, profits, or beneficial interest in the partnership, association, trust, or other entity”); Comp. Rule 3.590(b)(4)(C)(In addition to the foregoing tests, the comptroller may consider any other circumstance that tends to demonstrate that the more than 50% direct or indirect common ownership test was met or was not met.) 70 Planning for Conversion to a Limited Partnership A B LLC A LLC 1% • B Limited Partnership See also Comp. FAQs, Rule 3.582, Q & A 5 (“If an LLC converts to a limited partnership can the entity qualify for passive if it meets the 90% passive income test? To qualify as a passive entity, the entity must be a partnership or trust, other than a business trust, for the entire accounting period on which the tax is based. The entity may not qualify as passive for the accounting period during which the conversion occurs even if it meets the 90% income test. The entity may qualify as passive for subsequent reports.”). Joint Operating Arrangements 72 Joint Operating Agreement A B 25% working interest C 25% working interest D 25% working interest 25% working interest Joint Operating Agreement Federal Income Tax Considerations • A, B, C and D can elect out of application of partnership treatment under Subchapter K if certain conditions are met, including: 1) 2) 3) 4) The participants are involved in the joint production, extraction, or use of property; and The participants own the property as co-owners, either in fee or under lease or other form of contract granting exclusive operating rights, and The participants reserve the right separately to take in kind or dispose of their shares of any property produced, extracted, or used, and The participants do not jointly sell services or the property produced or extracted, although each separate participant may delegate authority to sell his share of the property produced or extracted for the time being for his account, but not for a period of time in excess of the minimum needs of the industry, and in no event for more than one year. Treas. Reg. § 1.761-2(a)(3) Texas Margin Tax Considerations • §171.0002(a)(Joint venture does not include a joint operating arrangement meeting the requirements of Treas. Reg. §1.761-2(a)(3) that elects out of federal partnership treatment under I.R.C. §761(a)); Comp. Rule 3.581(c)(10)(“Taxable entities include …joint ventures, except joint operating or co-ownership arrangements meeting the requirements of Treasury Regulation 1.7612(a)(3) that elect out of federal partnership treatment as provided by Internal Revenue Code, §761(a).”). ACTIVE PASSIVE LLC Natural Person 60% 73 40% Mineral Working Interest, L.P. (Operator) L.P. includes working interest dollars in gross revenue LLC excludes income allocation from L.P. LLC Natural Person 60% 40% Mineral Royalty, L.P. LLC must include income in margin tax gross revenue Cash Purchase of Sub Stock With Section 338(h)(10) Election Shareholders Parent Corporation Section 338(h)(10) – Part I Section 338(h)(10) – Part II Sub stock Deemed sale of assets “Old Sub” “New Sub” Unrelated Purchaser Deemed sale price Sub 1. Old Sub is treated as transferring all of its assets by sale to New Sub . 2. Old Sub recognizes the deemed sale gain while a member of the selling consolidated group . 3. After the deemed sale, Old Sub is then treated as transferring all of its assets to members of the selling consolidated group . “Old Sub” Old Sub liquidates into Parent 74 Joint & Several Liability 76 JOINT & SEVERAL LIABILITY – ILLUSTRATION NO. 1 Parent Corporation Operating Subsidiary No. 1 Operating Subsidiary No. 2 Operating Subsidiary No. 3 Operating Subsidiary No. 4 Operating Subsidiary No. 5 LLC No. 1 LLC No. 2 LLC No. 3 LLC No. 4 LLC No. 5 Assume sale of 100% of interests in LLC No. 5 or all of assets in LLC No. 5 §171.1014(i): Each member of the combined group shall be jointly and severally liable for the tax of the combined group. 77 JOINT & SEVERAL LIABILITY – ILLUSTRATION NO. 2 General Partner LLC Investors Delaware Limited Partnership LLC No. 1 LLC No. 2 LLC No. 3 LLC No. 4 LLC No. 5 LLC No. 6 Assume sale of 100% of interests in LLC No. 6 (or, alternatively, assume LLC No. 6 files for bankruptcy). 78 JOINT & SEVERAL LIABILITY – ILLUSTRATION NO. 3 Individual Service Partner 100% LP LLC No. 1 10% GP Big Real Estate Company 100% LP 90% LP Limited Partnership No. 1 Real Estate LLC No. 2 10% GP 100% LP 90% LP Limited Partnership No. 2 Real Estate LLC No. 3 10% GP 100% LP 90% LP Limited Partnership No. 3 Real Estate LLC No. 4 10% GP 90% LP Limited Partnership No. 4 Real Estate Assume Bankruptcy Petition Filed 79 MAJOR APPORTIONMENT ISSUES FOR TRANSACTION ATTORNEYS BASIC FORMULA TEXAS GROSS RECEIPTS COMBINED GROUP TAX BASE x TOTAL GROSS RECEIPTS (EXCLUDING FOREIGN) 80 MAJOR SOURCES OF TEXAS RECEIPTS Services performed in Texas Texas real estate revenue / sale or lease Texas mineral revenue TPP delivered in Texas to purchaser / lessee (Throwback rule deleted) Dividends / interest look to location of Payor See 34 TAC 3.591 Selected Statutory References Transacting Business in Texas for Purposes of Determining Whether Foreign Entity Must Register to Transact Business in Texas 82 Tex. Bus. Org. Code Ann. § 9.001(a) (Vernon 2010) (“To transact business in this state, a foreign entity must register under this chapter if the entity: (1) is a foreign corporation, foreign limited partnership, foreign limited liability company, foreign business trust, foreign real estate investment trust, foreign cooperative, foreign public or private limited company, or another foreign entity, the formation of which, if formed in this state, would require the filing under Chapter 3 of a certificate of formation; or (2) affords limited liability under the law of its jurisdiction of formation for any owner or member.”). Tex. Bus. Org. Code Ann § 9.001(b) (Vernon 2010) (“A foreign entity described by Subsection (a) must maintain the entity’s registration while transacting business in this state.”). Tex. Bus. Org. Code Ann. § 9.251 (Vernon 2010) (“Activities Not Constituting Transacting Business in This State) For purposes of this chapter, activities that do not constitute transaction of business in this state include: (1) maintaining or defending an action or suit or an administrative or arbitration proceeding, or effecting the settlement of: (A) such an action, suit, or proceeding; or (B) a claim or dispute to which the entity is a party; (2) holding a meeting of the entity’s managerial officials, owners, or members or carrying on another activity concerning the entity’s internal affairs; (3) maintaining a bank account; (4) maintaining an office or agency for: (A) transferring, exchanging, or registering securities the entity issues; or (B) appointing or maintaining a trustee or depositary related to the entity’s securities; (5) voting the interest of an entity the foreign entity has acquired; (6) effecting a sale through an independent contractor; (7) creating, as borrower or lender, or acquiring indebtedness or a mortgage or other security interest in real or personal property; (8) securing or collecting a debt due the entity or enforcing a right in property that secures a debt due the entity; (9) transacting business in interstate commerce; (10) conducting an isolated transaction that: (A) is completed within a period of 30 days; and (B) is not in the course of a number of repeated, similar transactions; (11) in a case that does not involve an activity that would constitute the transaction of business in this state if the activity were one of a foreign entity acting in its own right: (A) exercising a power of executor or administrator of the estate of a nonresident decedent under ancillary letters issued by a court of this state; or (B) exercising a power of a trustee under the will of a nonresident decedent, or under a trust created by one or more nonresidents of this state, or by one or more foreign entities; (12) regarding a debt secured by a mortgage or lien on real or personal property in this state: (A) acquiring the debt in a transaction outside this state or in interstate commerce; (B) collecting or adjusting a principal or interest payment on the debt; (C) enforcing or adjusting a right or property securing the debt; (D) taking an action necessary to preserve and protect the interest of the mortgagee in the security; or (E) engaging in any combination of transactions described by this subdivision; (13) investing in or acquiring, in a transaction outside of this state, a royalty or other nonoperating mineral interest; or (14) the execution of a division order, contract of sale, or other instrument incidental to ownership of a nonoperating mineral interest.”). Tex. Bus. Org. Code Ann. § 9.252 (Vernon 2010) (“Other Activities The list provided by Section 9.251 is not exclusive of activities that do not constitute transacting business in this state for the purposes of this code.”). Cf. Tex. Bus. Org. Code § 9.054(a) (Vernon 2010) (“The secretary of state may collect from a foreign filing entity a late filing fee if the entity has transacted business in this state for more than 90 days without registering under this chapter. The secretary may condition the effectiveness of a registration after the 90day period on the payment of the late filing fee.”). Cf. Tex. Bus. Org. Code § 9.054(b) (Vernon 2010) (“The amount of the late filing fee is an amount equal to the product of the amount of the registration fee for the foreign filing entity multiplied by the number of calendar years that the entity transacted business in this state without being registered. For purposes of computing the fee, a partial calendar year is counted as a full calendar year.”) Nexus for Texas Franchise Tax Purposes 83 Tex. Tax Code Ann. § 171.001 (Vernon 2010). (“Tax Imposed (a) A franchise tax is imposed on each taxable entity that does business in this state or that is chartered or organized in this state. (b) The tax imposed under this chapter extends to the limits of the United States Constitution and the federal law adopted under the United States Constitution. (c) The tax imposed under this section or Section 171.0011 is not imposed on an entity if, during the period on which the report is based, the entity qualifies as a passive entity as defined by Section 171.0003.”). 84 Unitary Business Tex. Tax Code Ann. § 171.0001(17) (Vernon 2010) (“Unitary business” means a single economic enterprise that is made up of separate parts of a single entity or of a commonly controlled group of entities that are sufficiently interdependent, integrated, and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts. In determining whether a unitary business exists, the comptroller shall consider any relevant factor, including whether: (A) the activities of the group members are in the same general line, such as manufacturing, wholesaling, retailing of tangible personal property, insurance, transportation, or finance; (B) the activities of the group members are steps in a vertically structured enterprise or process, such as the steps involved in the production of natural resources, including exploration, mining, refining, and marketing; or (C) the members are functionally integrated through the exercise of strong centralized management, such as authority over purchasing, financing, product line, personnel, and marketing.”). Selected Texas Administrative Code References Nexus for Texas Franchise Tax Purposes 34 Tex. Admin. Code § 3.586 (2010): (a) Effective date. The provisions of this section apply to franchise tax reports originally due on or after January 1, 2008. (b) A taxable entity is subject to franchise tax in this state when it has sufficient contact with this state to be taxed without violating the United States Constitution. (c) Some specific activities which subject a taxable entity to Texas franchise tax include, but are not limited to, the following: (1) advertising: entering Texas to purchase, place, or display advertising when the advertising is for the benefit of another and in the ordinary course of business (e.g., the foreign taxable entity makes signs and brings them into Texas, sets them up, and maintains them); (2) consignments: having consigned goods in Texas; (3) contracting: performance of a contract in Texas regardless of whether the taxable entity brings its own employees into the state, hires local labor, or subcontracts with another; (4) delivering: delivering into Texas items it has sold; (5) employees or representatives: having employees or representatives in Texas doing the business of the taxable entity; (6) federal enclaves: doing business in any area within Texas, even if the area is leased by, owned by, ceded to, or under the control of the federal government; (7) franchisors: entering into one or more contracts with persons, corporations, or other business entities located in Texas, by which: (A) the franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services under a marketing plan or system prescribed in substantial part by the franchisor; and (B) the operation of a franchisee's business pursuant to such plan is substantially associated with the franchisor's trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the franchisor or its affiliate. (8) holding companies: maintaining a place of business in Texas or managing, directing, and/or performing services in Texas for subsidiaries or investee entities; (9) inventory: having an inventory in Texas or having spot inventory for the convenient delivery to customers, even if the bulk of orders are filled from out of state; (10) leasing: leasing tangible personal property which is used in Texas; (11) loan production activities: soliciting sales contracts or loans, gathering financial data, making credit checks, collecting accounts, repossessing property or performing other financial activities in Texas through employees, independent contractors, or agents, regardless of whether they reside in Texas; 86 Nexus for Texas Franchise Tax Purposes, cont. 87 (12) partners: (A) acting as a general partner in a general partnership which is doing business in Texas; (B) acting as a general partner in a limited partnership which is doing business in Texas (a foreign taxable entity which is a limited partner in a limited partnership is not doing business in Texas, if that is the limited partner's only connection with Texas); (13) place of business: maintaining a place of business in Texas; (14) processing: assembling, processing, manufacturing, or storing goods in Texas; (15) real estate: holding, acquiring, leasing, or disposing of any property located in Texas; (16) services, including, but not limited to the following: (A) providing any service in Texas, regardless of whether the employees, independent contractors, agents, or other representatives performing the services reside in Texas; (B) maintaining or repairing property located in Texas whether under warranty or by separate contract; (C) installing, erecting, or modifying property in Texas; (D) conducting training classes, seminars or lectures in Texas; (E) providing any kind of technical assistance in Texas, including, but not limited to, engineering services; or (F) investigating, handling or otherwise assisting in resolving customer complaints in Texas. (17) shipment: sending materials to Texas to be stored awaiting orders for their shipment; (18) shows and performances: the staging of or participating in shows, theatrical performances, sporting events, or other events within Texas; (19) solicitation: having employees, independent contractors, agents, or other representatives in Texas, regardless of whether they reside in Texas, to promote or induce sales of the foreign taxable entity's goods or services; (20) telephone listing: having a telephone number that is answered in Texas; or (21) transportation: (A) carrying passengers or freight (any personal property including oil and gas transmitted by pipeline) from one point in Texas to another point within the state, if pickup and delivery, regardless of origination or ultimate destination, occurs within Texas; or (B) having facilities and/or employees, independent contractors, agents, or other representatives in Texas, regardless of whether they reside in Texas: Nexus for Texas Franchise Tax Purposes, cont. (i) for storage, delivery, or shipment of goods; (ii) for servicing, maintaining, or repair of vehicles, trailers, containers, and other equipment; (iii) for coordinating and directing the transportation of passengers or freight; or (iv) for doing any other business of the taxable entity. (d) See §3.583 of this title (relating to Margin: Exemptions) for information concerning exemption for certain trade show participants under Tax Code, §171.084. (e) Public Law 86-272 (15 United States Code §§381 - 384) does not apply to the franchise tax. 88 89 Unitary Business 34 Tex. Admin. Code § 3.590(b)(6) (2010): “Unitary business--A single economic enterprise that is made up of separate parts of a single entity or of a commonly controlled group of entities that are sufficiently interdependent, integrated, and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts. In determining whether a unitary business exists, the comptroller shall consider any relevant factor, including: (A) whether: (i) activities of the group members are in the same general line, such as manufacturing, wholesaling, retailing of tangible personal property, transportation, or finance; (ii) the activities of the group members are steps in a vertically structured enterprise or process, such as the steps involved in the production of natural resources, including exploration, mining, refining, and marketing; or (iii) the members are functionally integrated through the exercise of strong centralized management, such as authority over purchasing, financing, product line, personnel, and marketing. (B) Other factors. In addition, the comptroller may consider other factors that may be applicable, including guidelines in Supreme Court decisions that presume activities are unitary. All affiliated entities are presumed to be engaged in a unitary business. (C) New entities. When a taxable entity acquires another entity, a presumption exists for finding a unitary relationship during the first reporting period. Any party may rebut such presumption by proving that the taxable entities were not unitary. If such presumption is rebutted, then the taxable entities shall not be considered unitary as of the date of acquisition. When a taxable entity forms another taxable entity, a unitary relationship exists as of the date of formation unless the business is not unitary on a longer term basis. An acquired entity is required to file a report for the period prior to acquisition. (D) Non-arm's-length prices. Goods or services or both are supplied at non-arm's length prices between or among entities. Existence of arm's-length pricing between entities, however, does not indicate lack of unity. (E) Existence of benefits from joint, shared or common activity. A discount, cost-saving or other benefit can be shown to result from joint purchases, leaseholds, or other forms of joint, shared or common activities between or among entities. (F) Relationships of joint, shared or common activity to income-producing operations. In determining whether a joint, shared, or common activity is indicative of a unitary relationship, consideration shall be given to the nature and character of the basic operations of each entity. Such consideration shall include, but not be limited to, the entity's sources of supply, its goods or services produced or sold, its labor force, and market to determine whether the joint, shared, or common activity is directly beneficial to, related to, or reasonably necessary to the income-producing activities of the unitary business. (G) Holding entities. The tests for a unitary business established by this section apply in determining whether a holding entity is included or excluded from a unitary business.” Selected Comptroller’s Frequently Asked Questions 91 Unitary Business Comp. FAQs, Rule 3.590, Q&A 6 (“What does unitary business mean? A unitary business means a single economic enterprise that is made up of separate parts of a single entity or of a commonly controlled group of entities that are sufficiently interdependent, integrated, and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts.”). Comp. FAQs, Rule 3.590, Q&A 7 (“What factors are considered in determining a unitary business? Factors to be considered in determining a unitary business include whether the activities of the members are: in the same general line of business, or steps in a vertically structured enterprise or process, or functionally integrated through the exercise of strong centralized management.”). Selected Other References 93 Transacting Business in Texas for Purposes of Determining Whether Foreign Entity Must Register to Transact Business in Texas Cf. 2008 Letter from Texas Secretary of State Advising Foreign-Filing Entity of Certificate of Registration Requirement for Transacting Business in Texas (“Our records indicate that XXXX has not registered with this office and may be transacting business in Texas. A foreign-filing entity must file an Application for Registration if it ‘transacts business’ in Texas. Texas statutes do not specifically define ‘transacting business’; however, the Texas Business Organizations Code Sec. 9.251 lists 14 activities that do not constitute ‘transacting business.’ Generally, a foreign entity is transacting business in Texas if it has an office or an employee in Texas or is otherwise pursuing one of its purposes in Texas. In addition, the Texas Attorney General has held that a foreign corporate general partner of a Limited Partnership or a foreign corporate manager of a Limited Liability Company must register to transact business in Texas.”). Combined Reporting for Texas Franchise Tax Purposes 94 DRAFT: November 4, 2008 General Partner’s Authority to File Combined Report. If, for any tax period, the Partnership (1) is part of a combined group for Texas franchise tax purposes (the “Combined Group”), and (2) is required to join in the filing of a combined report for Texas franchise tax purposes for such period, or is permitted to do so and the General Partner, in its sole discretion, determines that such a filing is desirable, the General Partner is authorized to file on behalf of the Partnership any consents, elections, and other documents and take such other action as may be necessary or appropriate to file such a combined report. (For purposes of this Section 0, any period for which the Partnership is included in a combined report for Texas franchise tax purposes is hereinafter referred to in this Agreement as a “Combined Report Year.”) Liability to Other Combined Group Members for Partnership Combined Report Years. If the Partnership is included in a Combined Group for a Combined Report Year, the Partnership shall be responsible for paying and shall indemnify any other members of the Combined Group for any Texas franchise taxes for which the Partnership would have been liable for that year, computed as though the Partnership had filed a separate franchise tax return for such Partnership Combined Report Year (such amount, the “Separate Return Tax”). To the extent another member of the Combined Group pays the Partnership’s Separate Return Tax for any Combined Report Year (such member, the “Paying Member”), the General Partner is authorized to reimburse the Paying Member for such tax. Interim Estimated Payments. If the Combined Group is required to make estimated franchise tax payments during a Combined Report Year, the Partnership shall reimburse the Paying Member, if any, for the portion of the estimated tax payments that are attributable to the inclusion of the Partnership in the Combined Group (calculated in accordance with the principles set forth in Section 0). Any such reimbursed amounts so paid by in any year shall operate to reduce the Separate Return Tax obligation of the Partnership pursuant to Section 0. The General Partner shall request a refund from the Paying Member in the event the total estimated tax payments for a Combined Report Year exceed the Separate Return Tax for such year. Combined Reporting for Texas Franchise Tax Purposes (cont.) 95 Tax Adjustments. In the event of any adjustment to the tax returns of the members of the Combined Group as filed (by reason of an amended return, claim for refund, or an audit by the Office of the Texas Comptroller (the “Comptroller”)), the liability of the members of the Combined Group under Sections 2 and 5 shall be redetermined to give effect to any such adjustment as if it has been made as part of the original computation of tax liability, and members of the Combined Group shall satisfy any underpayments or overpayments within the Combined Group within 30 days after any deficiency payments are made to the Comptroller or refunds are received from the Comptroller, or, in the case of contested proceedings, within 30 days after a final determination of the contest. Partnership Subsidiaries. All taxable entities owned by the Partnership that are includable as members of the Combined Group shall be subject to this Agreement. If at any time the Partnership acquires or creates one or more taxable entities that are includable as members of the Combined Group, they shall be subject to this Agreement and all references to the Partnership herein shall thereafter be interpreted to refer to the Partnership and such entities as a group. Intent and Interpretation. The intent of this Section is that the Partnership should make the Paying Member whole, without more, by reimbursing the Paying Member only to the extent of the Partnership’s Separate Return Tax. Any ambiguity in the interpretation hereof shall be resolved, with a view to effectuating such intent, in favor of the Paying Member. CONSIDERATIONS FOR ACQUISITIONS IN A RECOVERING ECONOMY 97 Taxable Asset Sale By Individual Scenario No. 1A: Business Assets Held Directly by Individual Scenario No. 2A: Business Assets Held by Limited Liability Company Wholly-Owned by Individual I I I 100% 100% Limited Liability Company Operating Business Assets Scenario No. 1B: Business Assets Held Directly by Individual and Spouse Sp Community Interest Operating Business Assets Limited Liability Company 99% LP 1% GP Limited Partnership Operating Business Assets I Scenario No. 3A: Business Assets Held by SingleOwner Limited Partnership Scenario No. 2B: Business Assets Held by Limited Liability Company Owned by Individual and Spouse I Operating Business Assets Scenario No. 3B: Spouse Owns Community Interest Sp Community Interest Limited Liability Company I m Com Limited Liability Company unity intere st 99% LP Community Interest 1% GP Operating Business Assets Sp Limited Partnership Operating Business Assets 98 Forms of Taxable Acquisitions: Direct Purchase of Business Assets from Limited Partnership for Cash Individual A LLC Purchaser Limited Partnership Cash Assets Business Assets Individual B Individual C 99 Forms of Taxable Acquisitions: Direct Purchase of Assets from C Corporation for Cash Individual A Individual B C Corporation Purchaser Cash Business Assets Individual C 100 Forms of Taxable Acquisitions: Direct Purchase of Assets from S Corporation for Cash Individual A Individual B S Corporation Purchaser Cash Assets Individual C 101 Forms of Taxable Acquisitions: Direct Purchase of Assets for Cash and Note Promissory Note Cash Down payment Purchaser Seller Assets Forms of Taxable Acquisitions: Acquisition of Interest in Single-Member Limited Liability Company for Cash; Cash is Retained by Seller and is not contributed to the LLC Example: Purchase of 50% Interest in LLC for Cash Paid to S [not contributed to LLC] Unrelated Purchaser (P) S P S Cash [Retained by S] 50% 50% Interest in LLC Limited Liability Company 50% Limited Liability Company (classified as disregarded entity for Federal income tax purposes] (classified as partnership for Federal income tax purposes] Assets Assets 102 Compare: Acquisition of Interest in Single-Member Limited Liability Company for Cash Contributed to Company Example: Purchase of 50% Interest in LLC for Cash Contributed to Limited Liability Company Unrelated Purchaser (P) 50 % Inter e C a sh S P S 50% st in 50% LLC Limited Liability Company Limited Liability Company Assets (including contributed cash) Assets 103 Forms of Taxable Acquisitions: 50% Co-Owner’s Acquisition of Other CoOwner’s Interest in Limited Liability Company Cash A B B 50% Interest in LLC 50% 50% Limited Liability Company Limited Liability Company (classified as partnership for Federal income tax purposes] (classified as disregarded entity for Federal income tax purposes] Assets Assets 104 Forms of Taxable Acquisitions: 100% of Interests in Multi-Member Limited Liability Company by Unrelated Person Cash Cash C D E E LLC Interest LLC Interest 50% 100% 50% Limited Liability Company Limited Liability Company Assets Assets 105 106 Forms of Taxable Acquisitions: Acquisition of 100% of Partnership Interests in Limited Partnership (Not a Disregarded Entity) by Unrelated Person Individual A Individual D Individual B Individual A Individual E Individual C LLC Individual B Individual F LLC Individual C LLC Purchasing Limited Partnership Target Limited Partnership Purchasing Limited Partnership Assets LLC 100% 99% LP LLC Cash 1% GP General Partner Interest Cash Limited Partner Interest Limited Partnership ONE PERSON PARTNERSHIP – REV. RUL. 2004-77 Taxpayer 100% LP LLC GP Limited Partnership 107 DISREGARDED PARTNERSHIP STRUCTURE A Limited Liability Company B 33% LP 33% LP 1% GP Limited Partnership A 100% 1% GP 33% LP 99% LP Disregarded Limited Liability Company Limited Partnership Assets C 108 109 Forms of Taxable Acquisitions: Acquisition of Interest in Disregarded Entity with Assets for Cash from Multiple – Member Limited Partnership Individual A Individual B LLC Limited Partnership Purchaser Cash 100% 99% LP LLC LLC 1% GP Limited Partnership Assets Assets Individual C 110 Forms of Taxable Acquisitions: Purchase of Less than 50% Interest in Multi-Member Partnership or Limited Liability Company Purchaser Cash to A A’s 33% LLC Interest 33% LP and LP Interest Individual A Individual B 33% Individual C 33% 33% LLC 1% GP 33% LP Limited Partnership Assets 33% LP 33% LP 111 Oil and Gas Example (Sale of Assets) Seller See Comp. Rul 3.582(c)(1) (“to qualify as a passive entity, the entity must be one of the following for the entire period on which the tax is based: (A) general partnership; (B) limited partnership; (C) limited liability partnership; or (D) trust, other than a business trust;”) See Comp. Rule 3.582(c)(2) (“at least 90% of an entity’s federal gross income for the period on which margin is based must consist of the following sources of income: (C) net capital gains from the sale of real property. . . (D) royalties from mineral properties, bonuses from mineral properties, delay rental income from mineral properties and income from other non-operating mineral interests including non-operating working interests not described in subsection (d)(2) of this section.”) Purchaser A B C Texas Limited Partnership Texas Limited Partnership Texas Limited Partnership 59% LP 32.333% LP Texas LLC (“BLLC”) Texas LLC (“ALLC”) Texas Limited 1% GP 20% LP Partnership (classified area partnership for federal income tax purposes) (“Parent LP”) Texas LLC (“PLLC”) 33.333% LP 33.333% LP Texas Limited Partnership (“Purchaser”) 1% GP 20% LP cash See Comp. Rule 3.582(f)(1) (“Activities that do not constitute an active trade or business: (1) Ownership of a royalty interest of a nonoperating working interest in mineral rights.”) See also Comp. FAQs, Rule 3.581, Q&A 12 (“Is a non-Texas entity that owns a royalty interest in an oil and gas well in Texas subject to the franchise tax?” Yes. A royalty interest in an oil and gas well is considered an interest in real property. Therefore a nonTexas entity that owns a royalty interest in an oil and gas well in Texas is considered to own real property in Texas and is subject to the franchise tax unless it is a non-taxable entity.”); Comp. Rul. 3.582 (rules for qualifying as a passive entity). See also Comp. FAQs, Rule 3.590, Q&A 4 (“Can a passive entity be part of a combined group? No, a passive entity cannot be included in a combined group; however, a member of a combined group will include in total revenue the pro rata share of net income from a passive entity to the extent it was not included in the margin of another taxable entity.”). Royalty Interests Texas LLC (“S1LLC”) 99% LP 1% GP Texas limited partnership (“SubLP1”) Texas LLC (“S2LLC”) cash Texas limited partnership (“SubLP2”) cash Producing Oil & Gas Leases Pipeline For federal income tax purposes, who is the taxpayer? See Rev. Rul. 2004-77 For Texas margin tax purposes, is Parent LP a passive entity? See Tex. Tax Code Ann. § 171.0003(a) (“An entity is a passive entity only if: (1) the entity is a general or limited partnership or a trust, other than a business trust; (2) during the period on which margin is based, the entity's federal gross income consists of at least 90 percent of the following income: . . . (C) capital gains from the sale of real property . . . and (3) the entity does not receive more than 10 percent of its federal gross income from conducting an active trade or business.”). 112 Oil and Gas Example (Sale of Interests) Seller Purchaser A B C Texas Limited Partnership Texas Limited Partnership See Comp. Rul 3.582(c)(1) (“to qualify as a passive entity, the entity must be one of the following for the entire period on which the tax is based: (A) general partnership; (B) limited partnership; (C) limited liability partnership; or (D) trust, other than a business trust;”) See Comp. Rule 3.582(c)(2) (“at least 90% of an entity’s federal gross income for the period on which margin is based must consist of the following sources of income: (C) net capital gains from the sale of real property. . . (D) royalties from mineral properties, bonuses from mineral properties, delay rental income from mineral properties and income from other non-operating mineral interests including non-operating working interests not described in subsection (d)(2) of this section.”) Texas Limited Partnership 59% LP 32.333% LP Texas LLC (“BLLC”) Texas LLC (“ALLC”) 1% GP Texas Limited 20% LP Partnership (classified area partnership for federal income tax purposes) (“Parent LP”) Texas LLC (“PLLC”) 1% GP 20% LP 33.333% LP 33.333% LP Texas Limited Partnership (“Purchaser”) cash Royalty Interests Texas LLC (“S1LLC”) 1% GP 99% LP Texas LLC (“S2LLC”) Texas limited partnership (“SubLP1”) Texas limited partnership (“SubLP2”) Producing Oil & Gas Leases Pipeline For federal income tax purposes, who is the taxpayer? See Rev. Rul. 2004-77 For Texas margin tax purposes, is SubLP1 a passive entity? SubLP2? ParentLP? See Tex. Tax Code Ann. § 171.0003(a) (“An entity is a passive entity only if: (1) the entity is a general or limited partnership or a trust, other than a business trust; (2) during the period on which margin is based, the entity's federal gross income consists of at least 90 percent of the following income: . . . (C) capital gains from the sale of real property . . . and (3) the entity does not receive more than 10 percent of its federal gross income from conducting an active trade or business.”). See Comp. Rule 3.582(b)(10) (definition of “Security”) (A) an instrument defined by Internal Revenue Code, §475(c)(2), where the holder of the instrument has a noncontrolling interest in the issuer/investee; (B) an instrument described by Internal Revenue Code, §475(e)(2)(B), (C), (D); (C) an interest in a partnership where the investor has a non-controlling interest in the investee; (D) an interest in a limited liability company where the investor has a noncontrolling interest in the investee; or (E) a beneficial interest in a trust where the investor has a non-controlling interest in the investee. 113 Sale of Partnership Interest State Law Limited Liability Company Limited Limited Partner Partner LP Interest GP Interest Selling Limited Limited Partnership Partnership Consideration Limited Limited Partner Partner LP Interest Purchasing Partnership LP Interest in Limited Partnership Section 754 Election to step - up purchasing partner ’ s proportionate share of partnership’ s basis in assets to purchase price. Federal Income Tax Sale of ³ 50% Terminates Partnership Sale of < 50% of Total Interests in Partnership Capital and Profits Sale of ³ 50% of Total Interests in Partnership Capital and Profits (Technical Termination) Limited Liability Company AA BB Partnership Partnership Purchasing Partnership Limited Liability Company AA LP Interest Distribution of Interests in New Partnership In Liquidation of Old Partnership BB Consideration Purchasing Purchasing Partnership Partnership Partnership Partnership Partnership Interests Deemed Transfer of New Tax Partnership Forms of Taxable Acquisitions: Example of Reverse Subsidiary Cash Merger (See, e.g., Rev. Rul. 73-427; Rev. Rul. 78-250; Rev. Rul. 79-273; Rev. Rul. 90-95) Shareholders Shareholders Shareholders C Corporation Target Purchasing C Corporation All Cash Consideration Purchasing C Corporation Merger with and into C Corporation Target with Target surviving Transitory C Corporation Subsidiary C Corporation Target Compare Example of Forward Cash Merger (See Rev. Rul. 69-6) Shareholders Shareholders Shareholders All Cash Consideration (2) Liquidation P C Corporation P (C Corporation) Target C Corporation See, e.g., CCA 201004902 X Newly Formed C Corporation Sub (1) Merger with and into newly formed C corporation sub Treated as sale of Target’s assets to Newco followed by liquidation of Target X (C Corporation) Sub 114 Forms of Taxable Acquisitions: Example of Acquisition of C Corporation Stock – Regular §338 Election [not Section 338(h)(10) election] (RARE) C Corporation Seller C Corporation Purchaser 100% Stock Assume consolidated group Cash C Corporation (New Target) C Corporation (Old Target) Qualified stock purchase by corporation. Purchaser makes §338 election. Target is treated as if it (as Old Target) sold all of its assets as of the close of the acquisition date at fair market value and (as New Target) purchased all of the assets as of the beginning of the date after the acquisition date. If Old Target is part of a selling consolidated group, Old Target files a special final return (which is not consolidated with either the selling corporation or purchasing corporation’s consolidated group). Regular Section §338 election (as opposed to a Section 338(h)(10) election) generally does not change the tax treatment of the selling shareholders – they are still taxed on their stock sale, notwithstanding the purchasing corporation’s regular Section §338 election. Benefit of regular Section §338 election is very limited. 115 Example of Cash Purchase of Subsidiary C Corporation Stock With Section 338(h)(10) Election Shareholders Parent Corporation Section 338(h)(10) – Part I Section 338(h)(10) – Part II Sub stock Deemed sale of assets “Old Sub” “New Sub” Unrelated Purchaser “Old Sub” Old Sub liquidates into Parent Deemed sale price Sub 1. Old Sub is treated as transferring all of its assets by sale to New Sub. 2. Old Sub recognizes the deemed sale gain while a member of the selling consolidated group. 3. After the deemed sale, Old Sub is then treated as transferring all of its assets to members of the selling consolidated group. Qualified stock purchase by corporation. §338(h)(10) election made jointly by selling shareholders and purchasing corporation. §338(h)(10) changes tax treatment of Old Target and selling shareholders. Old Target is deemed to sell all of its assets in a single transaction while a member of the selling consolidated group (or while a non-consolidated affiliate or while an S corporation owned by the selling shareholders). Old Target is then deemed immediately thereafter to distribute its assets in complete liquidation to the members of the selling consolidated group who sold the target stock (or to the selling affiliate or to all of the S corporation shareholders). 116 117 Tax-Free Transfer of Assets to Partnership Scenario No. 1 39.5% Limited Partner Interest I Operating Business Cash Investor Group Cash 60% 40% Cash Limited Liability Company 59.5% Limited Partner Interest Limited Partnership 1% GP Scenario No. 2 Sp Community interest 39.5% Limited Partner Interest I Operating Business Cash Investor Group Cash 60% 40% Cash Limited Liability Company 59.5% Limited Partner Interest 1% GP Limited Partnership 118 Tax-Free Transfer of Assets to Corporation Scenario No. 1 I Investor Group Operating Business Cash 40% of Common Stock 60% of Common Stock C Corporation Scenario No. 2 Sp I Investor Group Community Interest Cash Operating Business 40% of Common Stock 60% of Common Stock C Corporation Selected Forms of Nontaxable Reorganizations: • “A” Reorganization (368(a)(1)(A)) • “B” Reorganization (368(a)(1)(B)) • “C” Reorganization (368(a)(1)(C)) • “D” Reorganization (368(a)(1)(D)) • Triangular Mergers (368(a)(2)(D) and 368(a)(2)(E)) 119 120 Illustration of Forms of Nontaxable Acquisitions: Type A Reorganization A Shareholders B Shareholders AB Shareholders C Corporation C Corporation (P) (P) P Common Stock C Corporation (T) Merger 121 Illustration of Forms of Nontaxable Acquisitions: Type A Reorganization (Merged into Disregarded LLC Owned by P) (Sec. Treas. Reg. § 1.368-2(b)(1)(iii) Example 2) A Shareholders P Stock C Corporation Merger of T into X (T) B Shareholders AB Shareholders C Corporation C Corporation (P) (P) (X) LLC (disregarded entiry) LLC 122 Illustration of Forms of Nontaxable Acquisitions: Type B Reorganization A Shareholders B Shareholders T Stock T C Corporation (Target) AB Shareholders Solely P Voting Stock (“No boot in B”) C Corporation C Corporation (P) (P) > 80% control immediately after T C Corporation 123 Illustration of Forms of Nontaxable Acquisitions: Type C Reorganization Target distributes stocks, securities, and other properties it reviewed, as well as other properties, in pursuance of plan of reorganization. A Shareholders B Shareholders AB Shareholders C Corporation C Corporation C Corporation Target (P) (P) P Voting Stock “substantially all” properties of Target (See also I.R.C. § 368(a)(2)(B) (20% boot exception)) Assets 124 Illustration of Forms of Nontaxable Acquisitions: Type D Acquisitive Reorganization Target distributes stocks, securities and other properties reviewed, as well as other properties of Target in pursuance of plan or reorganization. A Shareholders B Shareholders AB Shareholders > 50% Requirement of control by transferor or one or more of its shareholders P Stock C Corporation C Corporation Target (P) “substantially all” properties of Target C Corporation (P) 125 Examples of Forms of Nontaxable Acquisitions Example of Form of Reverse Triangular Merger ((a)(2)(E)) Acquiring Shareholders P (corporation) [Acquiring] P Voting Stock (in exchange for > 80% stock of T) Target Shareholders Example of Form of Forward Triangular Merger ((a)(2)(D)) Acquiring & Target Shareholders Acquiring Shareholders P P (corporation) [Acquiring] (corporation) [Acquiring] Acquiring & Target Shareholders P P Stock Target Shareholders (corporation) [Acquiring] T Corporation S T stock (at least > 80% test) S Transitory Subsidiary Merger of Transitory Sub into T with T surviving T Corporation (Target) T (“substantially all” properties of S&T) S Newly-Formed Subsidiary Merger of T into newlyformed S with S acquiring “substantially all” T properties (Target) 126 EXAMPLE 1 Partnership Merger Step 1. Identify the Survivor State Law AA BB 100% 49% LP LLC LLC 1% GP C C 100% 50% LP LLC LLC Merger AB AB Limited Limited Partnership Partnership (calendar (calendar year) year) 1% GP AA LLC LLC 1% GP 29% LP BB 30% LP ABCD ABCD Limited Limited Partnership Partnership D D 49% LP 50% LP CD CD Limited Limited Partnership Partnership (calendar (calendar year) year) C C 20% LP D D 20% LP Federal Income Tax AA LLC LLC 1% GP BB 29% LP 30% LP ABCD ABCD Limited Limited Partnership Partnership C C 20% LP 20% LP (AB Partnership is the Survivor -Now known as ABCD Limited Partnership for State Law Purposes) •Files Tax Return for Calendar Year •Uses EIN of AB Partnership • • CD CD Limited Limited Partnership Partnership D D Terminated as of date of Merger ISSUES: •Partnership Tax Year closes on Date of Merger •Required to file Partnership Return for “Short Year” Do Partners of AB or Partners of CD own > 50% interest in ABCD? What are the consequences of terminating and surviving partnership? 127 EXAMPLE 2 Step 2. Form of Merger Provided by Treasury Regulations. General Rule: Form of merger “accomplished under applicable jurisdictional law” will be respected if one of two forms prescribed for federal income tax purposes are followed: Federal Income Tax ASSETS OVER FORM OR D D C C CD CD (terminating (terminating Partnership Partnership AB AB (surviving (surviving partnership) partnership) ASSETS UP FORM ts ties i se As iabil L & s ere ts nt dI e d i div ts Un Asse in D D C C Liquidating Distribution LP st ere Int CD CD AB AB LP Interest in AB DEFAULT RULE: ASSETS OVER FORM (IF NO FORM UNDERTAKEN FOR MERGER) Assets Assets 128 EXAMPLE 3 Assets-Over Form of Merger [State law form of merger does not override rules in Regulations] Merger of Y into X A 40% C B 60% 40% 60% XX (State (State Law Law Survivor) Survivor) YY assets & liabilities Distribution of Partnership Interest to B and liquidation of Y Partnership Interest XX Assets Assets YY Assets Assets Net fair market value of X assets: $100 Net fair market value of Y assets: $200 Federal Income Tax STEP 1: Identify the survivor. (a) Do partners of X or partners of Y own > 50% interest in X? AB and BC both own > 50% interest in X. (b) Which partnership is credited with the contribution of the greatest fair market value (net of liabilities) to X? Y; therefore, Y is survivor. STEP 2: What are the consequences? A 40% 60% X Terminated B B Assets & Liabilities of X Transferred to Y Partnership Interests in Y transferred to X followed by liquidation of X C Y (Survivor) [net fair market value highest] 129 EXAMPLE 4 Treatment of Interests Over Form of Merger State Law C A 49% LP AB Limited Liability Company 1% GP 49% LP CD Limited Liability Company BB 50% LP STEP 1: A & B Transfer LP Interests And LLC Interest to CD. AB AB Limited Limited Partnership Partnership D D 50% LP 1% GP CD CD Limited Limited Partnership Partnership AB AB Limited Limited Liability Liability Company Company Assets Assets STEP 2: Liquidation of AB Limited Partnership and AB Limited Liability Company AB AB Limited Limited Partnership Partnership Federal Income Tax STEP 1: Identify the survivor (assume CD in this example). STEP 2: What consequences follow: A AB Limited Liability Company C 49% LP 50% LP 1% GP AB AB Limited Limited Partnership Partnership CD Limited Liability Company B AB transfers Assets & Liabilities to CD In exchange for Partnership Interests 49% LP D 50% LP 1% GP CD CD Limited Limited Partnership Partnership (assumed (assumed survivor) survivor) STEP 1: AB deemed to transfer assets and liabilities to CD in exchange for CD partnership interests. STEP 2: Distribution of CD Partnership Interests in Liquidation of AB. 130 Cash Out of Partner as Part of Partnership Merger AA BB D D EE C C FF Agreement: 1) Specifies purchase of C’s interest for $150 2) C Consents to sale treatment XX Partnership Partnership YY Partnership Partnership Merger Assumption: X is terminated partnership for federal income tax purposes. AA BB D D EE C C Step 1: Immediately prior to merger, Y deemed to purchase C’s interest in X. XX Partnership Partnership AA FF BB YY Partnership Partnership D D EE FF XX Partnership Partnership Step 2: Deemed transfer of assets attributable to A & B. Liquidation of’ Y s interest in X (formerly held by C) YY Partnership Partnership Nexus and State Tax Due Diligence in M&A Transactions and Multistate Business Models Steve Moore Jackson Walker L.L.P. [email protected] 132 Premise – Representation 1 “Seller is qualified to do business in each state in which either the ownership or use of the properties owned or used by it or the nature of the activities conducted by it require such qualification.” Common Sources: Loan Covenant Asset Purchase Agreement Opinion Letter 133 Premise – Representation 2 “Seller has filed or caused to be filed all tax returns that are or were required to be filed pursuant to applicable law.” Common Sources: Asset Purchase Agreement 134 Sources of Scrutiny • • • • Secretary of State oversight State Revenue Department oversight Contractual requirements GAAP and financial audit oversight “Transacting Business” for Registration Selected Safe Harbors: • Defending or prosecuting a suit • Board meeting • Maintaining a bank account • Holding a security interest in real estate • Transacting business in interstate commerce • Owning, without more, real or personal property in this state TBOC 9.251 135 136 Which Entities Must Register • • • • • • Corporation Limited partnership Limited liability company Business trust REIT Coop… ≠ General partnership TBOC 9.001(a)(1) 137 Nexus = “Sufficient contact with or activity within [a] state, as determined by state and federal law.” [to subject a person or entity to state taxation and compliance] 34 TAC § 3.286(a)(5) “Doing Business” for State Tax Nexus Purposes • Performing a contract in Texas (even if you use independent contractors) • Deliver items using seller’s vehicle to Texas buyer • Having employees or representatives in Texas • Having a franchisee in Texas • Acting as GP not LP • Any real estate in Texas • Providing any service in Texas 34 TAC § 3.586(c) 138 139 Case Study 1 Del LLC 1 Del LLC 2 GP LP Tex LP Operates Texas real estate See Tex. AG Op. JM7 Cf Comptroller Rule 3.286(c)(12) 140 Case Study 2 Del LLC 1 Del LLC 2 Manager Member Tex LP Operates Texas real estate See Tex. AG Op. JM7 What does LLC1 do in Texas? 141 Case Study 3 Buyer Asset Purchase Agreement: Target Consignment Inventory 6 States 1. Registered in all states where required 2. Filing income, sales, property tax returns in all states where required 142 Public Law 86-272 • Federal law exception to physical presence nexus – Only applies to state income tax ≠ sales tax – Only applies to sales of tangible personal property ≠ services • If only activity is in-state solicitation of sales of TPP, then income tax not allowed 143 Case Study 4 Economic Nexus: The Next Wave States are asserting income tax nexus in spite of 86-272 when businesses have economic presence from: 1) intellectual property 2) material sales 3) other standards Choice of Entity Tax Considerations in Entity Choice Nexus and State Tax Due Diligence in M&A Transactions and Multistate Business Models Dallas Estate Planning Council Dallas Country Club Dallas, Texas William H. Hornberger Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 214-953-5857 [email protected] Steven D. Moore Jackson Walker L.L.P. 100 Congress Avenue Suite 1100 Austin, Texas 78701 512-236-2074 [email protected] © 2014 William H. Hornberger and Steven D. Moore IRS Circular 230 Notice: The statements contained herein are not intended to and do not constitute an opinion as to any tax or other matter. They are not intended or written to be used, and may not be relied upon, by you or any other person for the purpose of avoiding penalties that may be imposed under any Federal tax law or otherwise.