October 18, 2016

Law360 quotes Friedemann Thomma on revised IRS debt-equity rules

1 min

Venable partner Friedemann Thomma was quoted in an October 18, 2016 Law360 article on the IRS' revised rules intended to recharacterize debt as equity. Following bipartisan backlash and comments from business groups that the original rules were overly broad and affected ordinary business transactions, the revised version contains exceptions for foreign subsidiaries of U.S. multinationals, S-corporations, mutual funds, REITs, and transactions between banks.

Despite the revisions, Thomma said "the inclusion of a 'per se' rule, which essentially recharacterizes an intercompany loan as equity if the transaction took place within 36 months of a reorganization, could unnecessarily curb bona fide restructuring efforts." He added, "The impact of recharacterization of debt into equity could be very detrimental even if the underlying transaction has nothing to do with an inversion… There is a fundamental nonunderstanding of the inappropriateness of the per se rule. In my opinion, the per se rule should not be there, period." Even if the rules do not apply to certain transactions, Thomma said businesses would still have to "go through a very lengthy, technical analysis" to determine if they apply.