Sup. Ct. to Decide Whether COD Income Increases Basis

Five circuits have decided whether S corporation cancellation of debt (COD) income excluded under Sec. 108(a) increases shareholder stock basis. The issue is important, because the increase in basis may allow the use of previously suspended S losses, or reduce gain (or produce a loss) on the corporation’s liquidation or the stock’s sale. The circuit decisions conflict, and the Supreme Court has agreed to hear the issue on Oct. 2, 2000. This article discusses the exclusion of COD income for an insolvent or bankrupt S corporation, the differing theories as to whether such income increases basis and what practitioners can do to protect clients until the Court speaks.

Robert A. Briskin, J.D., LL.M.
Law Offices of Robert A. Briskin
Los Angeles, CA

For more information about this article, contact Mr. Briskin at (310) 201-0507 or rablaw@earthlink.net . 2000 Robert A. Briskin. All Rights Reserved.

Executive Summary

• Currently, the circuits disagree on the treatment for Federal income tax purposes of S shareholders’ stock bases when the corporation has excludible COD income.

• In the interests of uniformity, the Supreme Court has decided to hear the issue, in Gitlitz.

• Taxpayers should file protective refund claims now if they have already paid taxes based on the IRS’s position.

Currently, the courts disagree on the treatment for Federal income tax purposes of S corporation shareholders’ stock bases when the corporation has excludible cancellation of debt (COD) income. The amount of basis can affect a shareholder’s use of current-year and suspended corporate tax losses, as well as the recognition of capital gains and losses on the stock’s disposition. The Third Circuit, in Farley,¹ the most favorable taxpayer result to date, recently held that S shareholders receive a basis step-up for COD income, thus allowing them to use previously suspended losses; the Eleventh Circuit, in Pugh, Jr.,² later agreed with Farley as to the basis step-up (however, Pugh, Jr., dealt with capital loss treatment, not suspended losses). As will be discussed, the Tax Court and three other circuits disagree with the Farley result, all for different reasons. Additionally, regulations state that excluded COD income does not pass through to S shareholders to increase stock basis. To resolve the conflict among the circuits, the Supreme Court recently agreed to hear the issue on Oct. 2, 2000.³ Currently, CPAs should consider filing protective refund claims for clients who previously paid taxes based on the IRS’s position, which denies an increase in stock basis for COD income.

Background

An S shareholder takes into account on his individual return his pro rata share of the corporation’s income and loss items, including COD income, under Sec. 1366(a). According to Sec. 1366(d)(1), a shareholder can use S losses only to the extent of his basis in stock and debt. Tax losses that cannot be used are “suspended” under Sec. 1366(d)(2) and carried forward to the taxpayer’s succeeding tax years, to be used if the shareholder later increases his stock or debt basis. Stock basis increases if the shareholder contributes additional capital, or if the corporation generates and passes through income (both taxable and tax-exempt) under Secs. 1366(a)(1)(A) and 1367(a)(1)(A). In Farley, the Third Circuit held that COD income was exempt income that increased an S shareholder’s stock basis. This increased basis allowed the shareholder to use previously suspended losses. In Pugh, Jr., the Eleventh Circuit held that S-level COD income increased the shareholder’s stock basis, entitling him to long-term capital loss treatment on the corporation’s liquidation.

It is an established tax principle that income is generated when a debtor receives total or partial cancellation of his outstanding debt, without paying consideration in return.⁴ S corporations experiencing financial difficulties may (1) have lenders or creditors forgive corporate debt, (2) file for bankruptcy protection under the Federal Bankruptcy Act or (3) have their assets foreclosed on, all of which can produce COD income. Under Farley, COD income is excluded by an insolvent S corporation via Sec. 108(a); however, such income still increases shareholder stock basis under Sec. 1367(a)(1)(A), allowing the pass-through to shareholders of previously suspended losses. The result of Farley is that neither the S corporation nor the shareholders recognize the corporation’s COD income (because the corporation is insolvent), yet the latter can deduct previously suspended S losses on their returns. If there are no suspended losses, the increased stock basis allows the (1) passthrough of current-year corporate losses to shareholders’ individual returns or (2) recognition of capital losses on the corporation’s liquidation or a stock sale.⁵

Excluding COD Income

Under Sec. 61(a)(12), S corporation COD income is passed through to shareholders. Under Sec. 108(a)(1), this COD income is excluded from an S corporation’s gross income if the discharge of the corporation’s debt occurs (1) in a Title 11 case (i.e., bankruptcy) or (2) when the corporation is insolvent. The S corporation’s bankruptcy or insolvency (not the shareholders’) determines whether COD income is excluded under Sec. 108(d)(7)(A). Under Sec. 108(d)(3), an S corporation is “insolvent” if its liabilities exceed the fair market value of its assets. Insolvency is determined on the basis of the corporation’s assets and liabilities immediately before the debt discharge.

The Sec. 108(a) insolvency and bankruptcy rules apply at the corporate level for corporations, but at the partner level for partnerships.⁶ Partnerships recognize COD income at the partnership level, but the various Sec. 108(a) exclusions apply at the partner level. While the IRS agrees that a partner’s basis in his partnership interest increases by his share of the partnership’s COD income excluded from his share of income under Sec. 108(a), it has ruled that S shareholders do not get a similar basis increase.⁷

Reducing Tax Attributes

The Code imposes a cost for excluding COD income. Sec. 108(b) requires that specified tax attributes be reduced to the extent COD income is excluded. Under Sec. 108(d)(7)(B), S corporation suspended losses are treated as net operating losses (NOLs) subject to reduction by Sec. 108(b)(2)(A).

Under Sec. 108(b)(2), the order of tax attribute reduction is as follows:

1. NOLs.

2. General business credits.

3. Minimum tax credits.

4. Capital loss carryovers.

5. Basis of the taxpayer’s property.

6. Passive activity loss or credit carryovers.

7. Foreign tax credit carryovers.

An exception to the above ordering rules allows a taxpayer to elect under Sec. 108(b)(5) to reduce first the basis of depreciable property. Excluded COD income stemming from “qualified real property business debt” (defined in Sec. 108(c)(3)) can only be applied to depreciable real property, under Sec. 108(c)(1)(A).

Sec. 1017 addresses tax attribute reduction to the basis of the taxpayer’s property. Sec. 1017(a) specifies that excluded COD income reduces the basis of property held by the taxpayer at the beginning of the tax year following the tax year in which the debt discharge occurs.

As was discussed, tax attribute reduction occurs at the S corporate level. If the S corporation has no tax attributes, COD income is simply excluded without tax attribute reduction. Often, suspended losses are the only tax attributes an S corporation has available to reduce. However, because Sec. 108(b)(4)(A) states that tax attribute reduction is not made until after the determination of the S corporation’s tax liability for the year of the debt discharge, S corporation suspended losses cannot be reduced in the same tax year the corporate debt is discharged. Thus, an S corporation computes its taxable income by including any excluded COD income for that year. Taxpayers have asserted that Secs. 1366(d)(1)(A) and 108(b)(4)(A) require that their stock basis be increased before tax attribute reduction, permitting an S shareholder to deduct suspended losses before the reduction rule is applied.

Example: X is the president and sole shareholder of six-year-old S corporation Q. His stock basis is $100,000. Q became insolvent in 1999. That year, Q’s banks and creditors agreed to write off $5,000,000 of corporate debt to prevent its liquidation. X did not guarantee Q’s debts. From 1996–1998, Q lost $5,100,000 for tax purposes; X could deduct only $100,000, his entire basis, on his personal returns.

Because Q’s creditors wrote off $5,000,000 of debt, Q had $5,000,000 of COD income in 1999. Based on Farley and Pugh, Jr., this COD income increased X’s stock basis under Sec. 1367(a)(1)(A). X then received a passthrough of $5,000,000 of ordinary suspended tax losses, which he can use by filing an amended 1999 return. X may even receive refunds for his income taxes paid in years before 1999, by carrying back unused tax losses to allowed years. Further, X can offset unused losses against taxable income in future years.

Under Sec. 108(a), neither X nor Q has to recognize the $5,000,000 of discharged debt, because Q was insolvent at the time of the debt forgiveness.

   

Service vs. Courts

IRS’s Position

In two TAMs,⁸ the IRS ruled that COD income excluded from an S corporation’s gross income under Sec. 108 is not tax-exempt income and does not pass through to increase a shareholder’s stock basis; thus, a shareholder could not deduct previously suspended losses.

Tax Court

Initially, the Tax Court rejected the IRS’s position, in Winn I,⁹ holding that COD income excluded under Sec. 108 passed through to S shareholders to increase stock basis. Rather than raising the arguments set forth in the TAMs, the IRS argued that COD income was not “realized” for Secs. 108 and 1366 purposes. The Tax Court held that Sec. 61(a)(12) requires that COD income be included in the S corporation’s gross income; thus, it is “realized.” Such income then passes through to shareholders to increase their stock bases and allow the deduction of previously suspended losses.

The Tax Court later issued Winn II,¹⁰ which withdrew Winn I in reliance on Nelson.¹¹ The Tax Court held in Nelson that Sec. 108 excluded COD income does not pass through to S shareholders, so stock basis does not increase. The court reasoned that, to the extent COD income is excluded from S gross income by Sec. 108, it is excluded at the corporate level; accordingly, it cannot be passed through to shareholders to increase stock basis. Further, income excluded by Sec. 108 is not tax-exempt, but rather, only tax-deferred, and does not increase stock basis. The Tax Court followed Nelson in subsequent cases.¹²

Nelson and Gitlitz

In 1999, the Tenth Circuit affirmed Nelson and issued Gitlitz.¹³ In both cases, the court applied a different legal analysis from that of the Tax Court in Nelson. The Tenth Circuit rejected the Tax Court’s interpretation of Sec. 108(d)(7)(A), stating that there was no intent in Sec. 108 to treat some S income at the corporate level, while treating other income at the shareholder level. Instead, COD income passes through to the S shareholders, but only after suspended losses are offset against COD income at the corporate level. In other words, suspended losses are first reduced at the corporate level by Sec. 108(b) tax attribution reduction, to the extent of excluded COD income; thus, there is no remaining COD income to pass through to shareholders, and no remaining suspended losses to be used by them. The court concluded that the shareholders’ suspended losses were fully offset in the same tax year by the corporation’s excluded COD income, and effectively disappeared.¹⁴

Witzel, Farley and Pugh, Jr.

In Witzel,¹⁵ the Seventh Circuit took a position contrary to both the Third and the Tenth Circuits, holding that S shareholders could not use excluded COD income to deduct suspended losses; such losses were first offset against excluded COD income at the corporate level. However, the court held that stock basis still increased by the excess of excluded COD income over a shareholder’s suspended losses. This COD income increase to stock basis can produce a tax benefit to shareholders at a later date, by allowing them to deduct S losses in future years (or reduce their gain on a future stock sale).

The Third Circuit issued Farley 11 days after Witzel was issued, disagreeing with both the Tax Court’s Nelson and the Tenth Circuit’s Gitlitz decisions. The Third Circuit held that Sec. 108(a) excluded COD income passes through to S shareholders to increase stock basis, thereby allowing the passthrough of suspended losses.

Farley held that if an S corporation is insolvent, COD income is excluded from its gross income; the Sec. 108 rules are applied at the corporate level under Sec. 108(d)(7)(A). The excluded COD income then passes through to the S shareholders, but is not recognized by them (because the corporation is insolvent). Even though the shareholders do not recognize this income, it causes an upward adjustment in stock basis, under Sec. 1367(a)(1)(A). The increased basis then allows a shareholder to deduct suspended losses previously denied due to lack of basis.¹⁶

The key to the taxpayer’s victory in Farley is the finding that the reduction of corporate tax attributes (such as suspended losses) occurs in the tax year following the year of COD income discharge under Sec. 108(b)(4)(A). The Third Circuit held that suspended losses are reduced on the first day of the tax year following the year of debt discharge, after the shareholders have already received a basis increase (allowing them to use previously suspended losses).¹⁷

The Eleventh Circuit, in Pugh, Jr., followed Farley and held that a shareholder could deduct capital losses based on an increased S stock basis from excluded COD income. The court held that all items of corporate income (including Sec. 108 excluded COD income) pass through to shareholders.

Friedman and Gaudiano

In June 2000, the Sixth Circuit issued both Friedman¹⁸ and Gaudiano.¹⁹ Those cases followed the Seventh and Tenth Circuits’ reasoning, holding that current-year losses and suspended losses are first reduced at the corporate level by the amount of excluded COD income. However, the Sixth Circuit also held that, if there is COD income remaining after such offset, it flows through to shareholders to increase their stock basis, allowing the deduction of future tax losses. The Sixth Circuit’s reasoning is similar to that of the Seventh Circuit in Witzel and the Eleventh Circuit in Pugh, Jr. (although the latter did not deal with suspended losses).

Summary of the Circuits

The five circuits that have addressed the issue (see Exhibit 1, above) all agree that excluded COD income is tax-exempt income under Sec. 1366 for purposes of increasing shareholder stock basis. However, the circuits conflict on when excluded COD income passes through to shareholders.²⁰ The Third Circuit, in Farley, held that such income passes through before suspended losses are reduced (allowing a shareholder to use them). The Tenth Circuit, in Gitlitz, held that excluded COD income does not pass through, and is instead set off against suspended losses at the corporate level (preventing a shareholder from using them). The Seventh Circuit, in Witzel, and the Sixth Circuit, in Gaudiano, stated that only a portion of excluded COD income passes through to a shareholder to increase basis, which may allow the use of future S losses.²¹ The Eleventh Circuit’s Pugh, Jr., decision, which did not involve suspended losses, held that the COD income was tax-exempt and passed through to increase shareholder stock basis, producing a capital loss deduction.²²

Supreme Court

In Gitlitz, the Supreme Court will at last decide the S COD income issue. Both the taxpayer and the government requested certiorari, to resolve the current conflict among the circuits. Additional cases are pending on this issue in other circuits. A district court, in Hogue,²³ recently held for the taxpayer on this issue, reasoning similarly to Farley; the case was appealed to the Ninth Circuit. Other pending cases include Chesapeake Outdoor Enterprises, Inc.²⁴ (appealed to the Fourth Circuit) and Eberle²⁵ (appealed to the Ninth Circuit). To produce uniformity among the circuits, the Supreme Court agreed to hear Gitlitz.

Permanent Exclusion of COD Income

In many instances, individuals use borrowed funds and other debt to generate tax deductions. In tax years after these deductions are taken, such taxpayers may become insolvent; their creditors may forgive the debt. This forgiven debt, which produced prior-year’s tax deductions, is then excluded from the taxpayer’s current taxable income under Sec. 108(a) (because the taxpayer is insolvent). Generally, a taxpayer would have to reduce his Sec. 108(b) tax attributes by the amount of excluded COD income. In many cases, however, an individual has no tax attributes to reduce. For example, insolvent taxpayers commonly have no NOLs, tax credits, capital losses or depreciable property basis to reduce. The Sec. 108 legislative history states that the excess of excluded COD income over the amount of tax attributes neither results in income nor has other negative tax consequences to the taxpayer.²⁶ Even in the absence of reducible tax attributes, a taxpayer may still exclude COD income. Thus, in some cases, individuals can permanently exclude COD income without tax cost.

Example: Y, a cash-basis individual, is a sole proprietor. In 2000, she pays $100,000 in salaries and other expenses by borrowing $100,000 from a third-party lender, and deducts the $100,000 on her 2000 return. Y becomes insolvent in 2001 and is unable to repay the lender, who writes off the $100,000 loan. Y excludes the $100,000 of COD income under Sec. 108(a)(1)(A), because she is insolvent. Because Y has none of the listed Sec. 108(b) tax attributes to reduce, she received a $100,000 tax deduction generated by the borrowed loan proceeds, but recognized no income on debt discharge. Further, Y does not have to reduce tax attributes.

Similar to the above example, Farley allowed S shareholders to receive a tax benefit, by being able to use suspended losses without having to reduce tax attributes. In Pugh, Jr., and Farley, neither the S corporation nor its shareholders recognized COD income under the Sec. 108 insolvency exception, despite the fact that the shareholders receive the tax benefit of increasing their stock basis by the amount of excluded COD income.

 

Are the Regulations Valid?

Treasury issued final regulations under Sec. 1366 in December 1999.²⁷ Regs. Sec. 1.1366-1(a)(2)(viii) effectively disallows the passthrough to S shareholders of excluded COD income to increase stock basis, thereby preventing use of suspended losses. The regulations, which apply to tax years beginning after Aug. 17, 1998, state that COD income excluded under Sec. 108 is not tax-exempt income; thus, it does not passes through to S shareholders to increase stock basis. The regulations’ preamble reasons that COD income excluded under Sec. 108(a)(1) is tax-deferred—not tax-exempt—income. Although no court to date has decided whether these regulations are valid, their validity is now questionable: the Third, Sixth, Seventh, Tenth and Eleventh Circuits have all held that excluded COD income is tax-exempt income.²⁸

Sec. 1366 does not define “income” for purposes of increasing shareholder basis under Sec. 1367(a)(1)(A). However, Farley held that Secs. 1366(a)(1)(A) and 108(b)(4)(A) are “clear” and “all income, tax-exempt or otherwise” passes through to S shareholders.²⁹ Thus, taxpayers are likely to challenge the validity of this regulation unless the Supreme Court decides Gitlitz in the government’s favor or Congress enacts tax legislation validating Regs. Sec. 1.1366-1(a)(2)(viii).³⁰

Applying for a Refund

Under Farley, taxpayers can use released S suspended losses by carrying them back and forward on amended returns.

Example: Z, an S corporation sole shareholder, has $1,000,000 of unused suspended losses from 1992 –1998. In 1999, the corporation became insolvent; $1,200,000 of debt was canceled by corporate creditors, producing $1,200,000 of COD income. Based on Farley, the $1,000,000 of suspended losses are released and passed through to Z in 1999. The S corporation, however, does not recognize this COD income, because it is insolvent. After Farley, Z should file an amended 1999 return, deducting the $1,000,000 of suspended loses, then carry back and forward any unused losses for Federal purposes by filing refund claims. For Z to avoid incurring a Sec. 6662(b)(1) accuracy-related penalty for disregarding a final regulation, he should disclose on Form 8275-R, Regulation Disclosure Statement, the fact that he is reporting the suspended losses pursuant to Farley, not the regulation.³¹

 

Conclusion

It cannot be predicted how the Supreme Court will decide the COD income issue, or whether Congress will jump into the fray and pass legislation. Therefore, taxpayers should file protective refund claims now if they have already paid taxes based on the IRS’s position in Nelson and Gitlitz.