Re: La solución de los Hedge Funds para pagar los menores impuestos posibles en 2012
READ ALL OF THIS>>> Do not forget the "Ordinary Loss" that occurred when the debtors abandoned the stock in WMB. That is a very large sum of money. Probably in the neighborhood of 18 Billion. I know the debtors took some tax losses in 2009, 2010. When the IRS installed the Rule that allows holding companies i.e. WMI to realize an Ordinary Loss instead of an Operation Loss when they lost their main income producing asset i.e WAMU BANKS they did with the expressed intention that the Holding Company could then take an "ORDINARY LOSS" that could be rolled over onto the entities books, therefore allowing the holding companies creditors and shareholders to recoup some investment through an acquisition schedule. Of course IRS does not want to facilitate acquisition to avoid taxes, but that is exactly what they did with this rule. WMIH meets every requirement in the language I have submitted below.
If the Holding Company does not use this Ordinary Loss in the tax year it was acquired i.e 2012, then the Hold Co will have to put the Loss on the books in the NOL category and therefore subject the loss to stricter rules per the IRS. WMI is not going to allow a multi-billion loss now worth 39% to an acquiring firm to just rollover into the NOL category on WMI's books. No, once the BK is completely finalized and all creditors are satisfied, (if I am reading this right) WMIH can then be acquired for the losses as well as the assets. An ordinary loss is not an operating loss. Worthless Stock is just that WORTHLESS !!!
WMI MEETS THE 165 TEST (remember discussions about this in BK court?)
Parent can deduct as ordinary loss worthless securities in wholly-owned subsidiary PLR 201108001 IRS has privately ruled that, provided Code Sec. 165(a) 's and Code Sec. 165(g) 's requirements for claiming a worthless securities deduction are met, a savings and loan (S&L) company may claim an ordinary loss for its basis in the stock of its wholly-owned banking subsidiary. In so holding, IRS determined that the interest on and gains from the sale of the subsidiary's real estate and consumer loans were active receipts for purposes of applying the Code Sec. 165(g)(3) gross receipts test since, until the subsidiary was placed in receivership, it was an active operating company that performed significant services in its banking transactions. Background. If any security that is a capital asset becomes worthless during the tax year, the loss is treated as from the sale or exchange of a capital asset—that is, as a capital loss—on the last day of the tax year. ( Code Sec. 165(g)(1) ) A share of stock in a corporation is included in the definition of a security. ( Code Sec. 165(g)(2) )
Under the Code Sec. 165(g)(3) exception, a domestic corporation can claim an ordinary loss for worthless securities of an affiliated corporation. A corporation is affiliated with the taxpayer if it meets these two tests: ...
Ownership test. The taxpayer must own directly stock in the corporation meeting the requirements of Code Sec. 1504(a)(2) (i.e., at least 80% of the voting power and value of the corporation's stock); ( Code Sec. 165(g)(3)(A) ) and ...
Gross receipts test. More than 90% of the aggregate of the corporation's gross receipts for all tax years must be from sources other than royalties, rents (except rents derived from rental of properties to employees of the corporation in the ordinary course of its operating business), dividends, interest (except interest received on deferred purchase price of operating assets sold), annuities, and gains from sales or exchanges of stocks and securities. ( Code Sec. 165(g)(3)(B) ) Reg. §
1.165-5(d)(2)(iii) provides that the gross receipts test applies for all tax years during which the subsidiary has been in existence. Under Reg. § 1.1502-80(c) , subsidiary stock is not treated as worthless under Code Sec. 165 until immediately before the earlier of the time: (1) the stock is worthless within the meaning of Reg. § 1.1502-19(c)(1)(iii) ; or (2) the subsidiary for any reason ceases to be a member of the group. Under Code Sec. 582(c) , the sale or exchange of a bond, debenture, note, certificate, or other evidence of indebtedness by financial institutions (including banks) will generally result in ordinary gain or loss. Worthless stock in an affiliated bank (in which the taxpayer owns at least 80% of each class of stock) gives rise to an ordinary loss deduction if the stock becomes worthless.
Facts. Parent and its domestic corporate subsidiaries are members of an affiliated group of corporations that has historically filed a U.S. consolidated federal income tax return. Parent is a S&L company, and the subsidiary at issue (Sub), in which Parent owns all outstanding stock, operated as a federally chartered savings bank and was Parent's principal operating subsidiary. Parent and one of its non-banking subsidiaries (bankrupt subsidiary) filed for chapter 11 bankruptcy on Date 1. The bankruptcy filing was precipitated by the seizure of Sub by the Office of Thrift Supervision and placement into a receivership with the Federal Deposit Insurance Corporation (FDIC) on Date 2, immediately followed by a receivership sale of substantially all of Sub's assets.
The FDIC, as receiver, continues to act on Sub's behalf and holds Sub's remaining assets (including the sale proceeds). The receivership sale was a taxable transaction in which a separate entity purchased substantially all of Sub's assets and assumed all of its the deposits and certain other liabilities. Sub also had unassumed debt liabilities, and parent's group reported a net loss on its consolidated tax return with respect to the sale.
Since the sale, Sub's assets have principally consisted of the cash proceeds, some amount of which has been invested in marketable securities, and certain intercompany claims and other causes of action. On Date 3, Parent and its bankrupt subsidiary filed a proposed plan of reorganization under chapter 11. The plan is premised on the Bankruptcy Court's approval of a proposed settlement agreement resolving numerous disputes among Parent and its bankrupt subsidiary, the corporation that purchased substantially all of Sub's assets, and the FDIC.
The existing outstanding stock of Parent will be cancelled on the effective date of the plan, and it is currently contemplated that new common shares of reorganized Parent will be issued to certain claimholders. The plan also provides for the establishment of a liquidating trust. At the time that the private letter ruling (PLR) was issued, ignoring any possible recovery on the receiver's claims, the outstanding debt of Sub exceeds its assets, and Sub is expected to remain insolvent.
Parent has an adjusted tax basis in its Sub stock of at least an undisclosed amount, Sub continues to be a member of Parent's group, and Parent has not claimed a worthless stock deduction with respect to the Sub stock under Reg. § 1.1502-80(c) .
Parent expects to recognize its loss from its Sub stock no later than the cancellation of such stock upon the winding-up of the Sub receivership. But, Parent may seek to abandon its stock interest in Sub at an earlier time, in which case Parent will recognize the loss at the time of abandonment. Conclusion. IRS determined that, provided all the requirements for claiming a worthless securities deduction are met,
Parent may claim an ordinary loss for its basis in Sub's stock. Parent represented that the stock would be worthless under Code Sec. 165(g)(1) at the time specified in Reg. § 1.1502-80(c) , and IRS concluded that Parent met the affiliation requirements under Code Sec. 165(g)(3) where it satisfied both the ownership test and the gross receipts test.
The ownership test was readily met based on facts that (i) Parent directly owned all of the stock in Sub, (ii) Parent didn't elect under Reg. § 1.597-4(g) to disaffiliate Sub, and (iii) Sub would continue to be an affiliate until it was liquidated or until Parent abandoned its stock. IRS then examined the language and legislative history of Code Sec. 165(g)(3)(B) and determined that the interest on and gains from the sale of Sub's real estate and consumer loans were active receipts for purposes of applying the gross receipts test. IRS reasoned that the gross receipts test was intended to be a mechanism for determining whether a subsidiary is an operating company (for which an ordinary loss may be allowed) or a holding company (for which no ordinary loss is allowed), and Sub was clearly an operating company that performed significant services in conjunction with the banking transactions that yielded interest income and gain. IRS found that the legislative history of Code Sec. 582(c) further indicates that, for operating banks, gains from transactions involving items of indebtedness are more appropriately treated as yielding ordinary income since these items are akin to inventory or stock items. Thus, IRS reasoned that such gains from such transactions shouldn't be treated as passive for purposes of Code Sec. 165(g)(3)(B) . § 165 Losses.
Parent has until last day of Tax YEAR 2012 to realize the Ordinary Loss on the Books of the WMIH
Until then... WE WAIT !!! Sorry it was so long, but it is important that we look ahead and not back.
~Don~
