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S Corporation’s Disposition of Major League Baseball Team Was Disguised Sale

An S corporation’s disposition of a major league baseball team was a disguised sale to a newly formed partnership. The taxpayer had formed the partnership, with a renowned family, where the taxpayer contributed the major league baseball team and related assets and the family contributed cash. Subsequently, the partnership then distributed cash to the taxpayer (the transaction) which represented a “disguised sale” which was taxable under Code Sec. 707. Further, the IRS had issued a notice of deficiency to the taxpayer and a notice of final partnership administrative adjustment (FPAA) as to the partnership for the tax year at issue. The IRS claimed that since the debt funded by the family was not bona fide debt, it was supposed to be disregarded for purposes of the debt-financed distribution rule. The taxpayer argued that the transaction was a disguised sale but that the distribution to the taxpayer was not taxable because it was a debt-financed distribution. Moreover, the taxpayer contended that it should be allocated to the debt because it bore the economic risk of loss on account of its guaranties. However, the IRS contended that the possibility of the taxpayer being called on to fulfill the guaranties was so remote it they should be disregarded.

Whether the Sub Debt was Bona Fide Debt or Equity
The parties disputed whether the amount of sub debt which the partnership borrowed from a finance company was bona fide debt and therefore a partnership liability. The factors which determined the same (the Dixie Dairies factors), such as: 1) presence or absence of a fixed maturity date; (2) names given to the certificates evidencing the indebtedness; (3) source of payments; (4) right to enforce payments; (5) participation rights; (6) status of the advances in relation to regular corporate creditors; (7) intent of the parties weighs strongly toward equity; (8) identity of interest between creditor and stockholder; (9) ‘thinness’ of capital structure in relation to debt; (10) ability of the corporation to obtain credit from outside sources; (11) use to which the advances were put; (12) failure of the debtor to repay; and (13) risk, all strongly favored that the sub-debt was equity. Because the sub debt was equity, it was not allowed to be allocated to the taxpayer as recourse debt.

Allocation of Partnership Liabilities
The economic substance of the transaction was a disguised sale with a debt-financed distribution, a structure contemplated by both the statute and the regulations. Moreover, under the constructive liquidation test, the taxpayer bore the risk of economic loss for the senior debt. According to the terms of the taxpayer’s guaranty of the senior debt, the taxpayer was obligated to pay when the partnership failed to make a payment and the debt was accelerated, the creditors had exhausted their remedies, and the creditors had failed to collect the full amount of the debt. Therefore, the senior debt guaranty was a nontaxable debt-financed distribution. Finally, the amount of expenses, in the form of legal expenses, paid by the taxpayer to a group of potential buyers, was required to be capitalized.

IRS Highlights Home Energy Credits for Taxpayers, IR-2024-137

The IRS has advised taxpayers that making specific energy-efficient updates to their homes could qualify them for home energy credits. This guidance comes under the expanded provisions of […]

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IRS Highlights Home Energy Credits for Taxpayers, IR-2024-137

IRS Issues FAQs on Disaster Relief Related to Retirement Plans, FS-2024-19; IR-2024-132

The IRS issued frequently asked questions (FAQs) related to distributions from retirement plans and IRS for individuals impacted by federally declared disasters. These FAQs cover the ongoing disaster relief for certain distributions […]

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IRS Issues FAQs on Disaster Relief Related to Retirement Plans, FS-2024-19; IR-2024-132

2025 Inflation Adjustments for Health Savings Accounts Released, Rev. Proc. 2024-25

The IRS has released the 2025 inflation-adjusted amounts for health savings accounts under Code Sec. 223. For calendar year 2025, the annual limitation on deductions under Code Sec. 223(b)(2) for an […]

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2025 Inflation Adjustments for Health Savings Accounts Released, Rev. Proc. 2024-25

FL - Eligibility for tax credit scholarship program expanded

The eligibility for the Florida Tax Credit Scholarship Program is expanded for sales and use tax purposes. The scholarship program […]

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FL - Eligibility for tax credit scholarship program expanded

FL - IRC conformity tie-in date updated, disaster extension established

Florida updated the IRC conformity tie-in date for computing corporate income tax liability from January 1, 2023 to January 1, […]

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FL - IRC conformity tie-in date updated, disaster extension established

FL - Gas and Sulfur production tax rates for 2024-2025 announced

Florida has issued the severance tax rates for the production of gas and sulfur effective July 1, 2024, through June […]

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FL - Gas and Sulfur production tax rates for 2024-2025 announced

No Further Funding Cuts For IRS In FY24

Other than a planned repurposing of Inflation Reduction Act supplemental funding, the Internal Revenue Service saw no other cuts as the President signed off on the resolution […]

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No Further Funding Cuts For IRS In FY24

IRS Updates FAQ on Commercial Clean Vehicle Credits (FS-2024-14; IR-2024-111)

The IRS updated frequently asked questions (FAQ) on New, Previously Owned and Qualified Commercial Clean Vehicle Credits. These FAQs provide guidance on how the Inflation Reduction […]

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IRS Updates FAQ on Commercial Clean Vehicle Credits (FS-2024-14; IR-2024-111)

2024 Foreign Housing Expense Amounts Released, Notice 2024-31

KPMG TaxNewsFlash – United States March 20, 2024 The IRS today released Notice 2024-31 [PDF 156 KB] providing the adjustments to the limitation on housing expenses, under […]

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2024 Foreign Housing Expense Amounts Released, Notice 2024-31

Energy Efficient Property and Improvement Rebate Guidance Issued, Announcement 2024-19; IR-2024-97

The IRS has issued an announcement that addresses the federal income tax treatment of amounts paid for the purchase of energy efficient property and improvements. Taxpayers who […]

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Energy Efficient Property and Improvement Rebate Guidance Issued, Announcement 2024-19; IR-2024-97