Listed Transactions
Backdated Retirement Plan Contributions Purported Multiple Employer Welfare Benefit Funds ASA Investerings Partnerships Short-term Charitable Remainder Trusts "BOSS" (Bond-and-Option Sales Strategy) Fast-pay Stock Arrangements Bull & Bear Note Transactions Son of BOSS Improper Use of a Subsidiary to Satisfy Parent's Stock-based Compensation Obligations Guam Trusts MIDCO Deals Abusive Section 351 Transfers Using Contingent, Unmatured Liabilities Foreign Leverage Investment Portfolio (FLIP) & Offshore Portfolio Investment Strategy (OPIS) Abusive Basis-shifting Devices Using Loan Assumption Agreements (CARDs) Abusive Notional Principal Contract Abusive Straddles Lease-in/Lease-out (LILO) Transactions Abusive ESOP/S Corporation Arrangements Abusive Offshore Employee Leasing Arrangements Abusive Collectively Bargained Welfare Benefit Funds Abusive Option Sales to Family Limited Partnerships (FLPs)/Related Parties Lease-stripping Contested Liability Acceleration Strategies (CLAS) Abusive Offsetting Foreign Currency Option Contract Transactions Abusive Roth IRA Transactions Abusive Use of ESOP/S Corporation Ownership Abusive Section 412(i) Plans with Excessive Life Insurance Abusive Foreign Tax Credit Transactions Abusive S Corporation Income Shifting Arrangements (SC2) Abusive Partnership Intercompany Financings Sale-in/Lease-out Arrangements Loss Importation Transactions Abusive Trust Arrangements Utilizing Cash Cash Value Life Insurance Policies Purportedly to Provide Welfare Benefits Distressed Asset Trust Transactions
Backdated Retirement Plan Contributions. A transaction in which a taxpayer claims a deduction for contributions made to a qualified retirement plan even though the related compensation is not earned by plan participants until after the end of the taxable year. The transaction is listed even if the employer’s liability to make the contribution is fixed before end of the year.
Purported Multiple Employer Welfare Benefit Funds. Certain trust arrangements that purportedly satisfy the requirements for the 10-or-more employer plan exemption under IRC §§419 and 419A but where contributions are determined in a way that insulates each employer from the experience of other subscribing employers.
ASA Investerings Partnerships. Transactions involving contingent installment sales of securities by partnerships to accelerate and allocate income to a tax-indifferent partner, such as a tax-exempt entity or a foreign person, and to allocate losses to a taxable partner.
Short-term Charitable Remainder Trusts. Transactions in which a donor contributes highly appreciated assets to a charitable remainder trust that has a short-term and a high-payout rate. The trustee borrows money and sells the assets in the second or third year, i.e., quickly. The borrowed funds are distributed early on, usually in the first year, and efforts are made to characterize these as tax-free distributions.
"BOSS" (Bond-and-Option Sales Strategy). Transactions involving the distribution of encumbered property in which taxpayers claim tax losses for capital outlays they have in fact recovered. These transactions typically involve taxpayers acting through a partnership to contribute cash to a foreign corporation in exchange for the corporation's common stock. The corporation then borrows money from a bank, giving the bank a security interest in the stock acquired by the foreign corporation that has a value equal to the amount borrowed. The corporation then distributes the security interest to the partnership, and this distribution reduces the value of the remaining stock to zero or to a trivial amount.
Fast-pay Stock Arrangements. Fast-pay stock is stock that is structured so dividends are economically (in whole or in part) a return of the holder's investment, as opposed to on the holder's investment. Stock is presumed to be fast-pay if it has a dividend rate that is reasonably expected to decline, as opposed to fluctuate or remain constant, or if it is issued for an amount that exceeds the amount at which the holder can be compelled to dispose of the stock.
Bull & Bear Note Transactions. Transactions involving the acquisition of two debt instruments that are structured so that value of one debt instrument increases while the value of other instrument decreases. These transactions attempt to recognize loss on the sale of the instrument that decreases in value, while not recognizing gain on the instrument that increases in value.
Son of BOSS. Transactions generating losses by artificially inflating the basis of partnership interests. These transactions typically involve either a taxpayer borrowing money at a premium, with the partnership assuming the debt and the taxpayer contributing proceeds to the partnership, or a taxpayer buying and writing options, and then creating positive basis in its partnership interest by transferring the option positions to the partnership.
Improper Use of a Subsidiary to Satisfy Parent's Stock-based Compensation Obligations. Transactions involving the purchase of a parent corporation's stock by a subsidiary, followed by a transfer of the purchased parent stock from the subsidiary to the parent's employees and the eventual liquidation or sale of the subsidiary.
Guam Trusts. Transactions in which the shareholders of a pre-existing or newly formed S corporation transfer their stock to a newly formed trust that purportedly qualifies as both a domestic trust under U.S. law and a Guam resident trust for purposes of Guamanian law. Promoters claim these trusts are able to pay income taxes to Guam, instead of to the U.S., on income derived from the U.S.-based S corporation. Under certain circumstances, Guamanian law enables the trust to recover all of the taxes paid to Guam.
MIDCO Deals. Certain transactions involving the use of an intermediary to sell the assets of a corporation that attempt, through a series of steps, to record no gain on the sale.
Abusive Section 351 Transfers Using Contingent, Unmatured Liabilities. Transactions involving a loss on the sale of stock acquired in a purported tax-free transfer under §351 of a high-basis asset to a corporation and the corporation's assumption of a liability that the transferor has not yet taken into account for federal income tax purposes.
Foreign Leverage Investment Portfolio (FLIP) & Offshore Portfolio Investment Strategy (OPIS). Transactions in which a purported redemption of stock owned by a tax-indifferent party, e.g., a foreign party, is treated as a dividend. A variety of devices, i.e., forward open contract, options, puts and calls, are used to enable the redeemed shareholder to claim that it has continuing interests in the entity that is redeeming its stock. Promoters claim that all or a portion of the basis of the redeemed stock can be added to the basis of stock in the redeeming corporation owned by the taxpayer. Then, the taxpayer sells the stock and claims a loss. A variation of the transaction involves the transfer of the stock with a higher basis to an entity in a carryover basis exchange such as a §351 transaction followed by either a sale of the entity interest or a sale of the stock by the entity.
Abusive Basis-shifting Devices Using Loan Assumption Agreements (CARDs). Transactions involving the use of a loan assumption agreement to inflate the basis in assets acquired from another party to generate tax losses. Generally, these types of transactions have a U.S. taxpayer becoming jointly and severally liable on debt of the transferor of assets, with the debt having a stated principal amount exceeding the fair market value of the assets separately transferred to the taxpayer in consideration for its agreement to pay part of loan. The losses from these types of transactions are not allowable to the extent the taxpayer derives benefit attributable to the basis exceeding fair market value since the parties are liable for loan repayment in accord with their relative ownership of the assets immediately after transfer to the taxpayer.
Abusive Notional Principal Contract. Transactions involving the use of a notional principal contract to claim current deductions for periodic payments made by a taxpayer, while disregarding the accrual of a right to receive offsetting payments in the future.
Abusive Straddles. Three different transactions that are designed to create a permanent noneconomic loss:
- Transactions involving the use of a straddle, a tiered partnership structure, a transitory partner and the absence of a §754 election to claim a permanent noneconomic loss.
- Transactions involving the use of a straddle, an S corporation or a partnership and one or more transitory shareholders or partners to claim a loss while deferring an offsetting gain.
- Transactions involving the use of economically offsetting positions, one or more tax indifferent parties and the common trust fund accounting rules of §584 to allow a taxpayer to claim a noneconomic loss.
Lease-in/Lease-out (LILO) Transactions. Transactions in which a taxpayer purports to lease property and then purports to immediately sublease it back to the lessor.
Abusive ESOP/S Corporation Arrangements. Certain arrangements involving the use of an ESOP-owned S corporation(s) to gain the tax advantages of an ESOP without giving employees participation in the ESOP. Typically, the owners of a profitable closely held operating corporation establish an ESOP-owned S corporation management company, which employs only the owners. Earnings of the operating company are stripped out via management fees, and the purported result is tax-deferred income to the owners without the participation of nonowner employees in the ESOP.
Abusive Offshore Employee Leasing Arrangements. Certain arrangements involving leasing companies that have been used to avoid or evade federal income and employment taxes. Typically, an individual taxpayer terminates an existing employment relationship with a domestic corporation and then purports to lease his services back to his former employer through a foreign leasing corporation and then through a domestic leasing corporation.
Abusive Collectively Bargained Welfare Benefit Funds. Certain arrangements that purportedly qualify as collectively bargained welfare benefit funds excepted from the account limits of §§419 and 419A. Promoters of these arrangements usually claim benefits are being provided under a collective bargaining agreement and are currently deductible when paid.
Abusive Option Sales to Family Limited Partnerships (FLPs)/Related Parties. Transactions involving compensatory stock options and related persons to avoid or evade federal income and employment taxes. These transactions purportedly avoid tax on compensatory stock options. The transaction typically involves an individual transferring a compensatory option to a related person through a family limited partnership, which “pays” for the option's value with a long-term, unsecured nonnegotiable note, calling for a balloon payment at end of the note's term. Promoters contend the individual doesn't recognize compensation for the purchase price of the option until the FLP pays the amount due under the note or some other deferred payment obligation.
Lease-stripping. Transactions in which a tax-indifferent participant claims rental or other income from property or service contracts and a taxable participant claims the deductions related to that income. The lease-strip transactions promoted apply not only to tangible property but also to licenses of intangible property, service contracts, leaseholds or other nonfee interests in property and the prepayment, front-loading or retention (rather than assignment) of rights to receive future payments.
Contested Liability Acceleration Strategies (CLAS). Certain transactions that use contested liability trusts improperly to accelerate deductions for contested liabilities. These transactions claim to allow a taxpayer to deduct a contested liability in a year before the ultimate resolution of liability. However, (1) the taxpayer retains powers over the trust assets; (2) the taxpayer transfers related party notes to the trust indicating the liability is not genuine or there is no intent between the parties to enforce the obligation; or (3) the taxpayer uses the trust for contested tort, workers compensation or other liabilities, for which economic performance requires payment to the claimant.
Abusive Offsetting Foreign Currency Option Contract Transactions. Certain transactions involving offsetting foreign currency option contracts in which a taxpayer claims a loss upon the assignment of a §1256 foreign currency contract with a loss position to a charity but fails to report the recognition of gain when the taxpayer's obligation under an offsetting non-§1256 contract with a gain position terminates.
Abusive Roth IRA Transactions. Certain transactions designed to avoid the limitations on contributions to Roth IRAs. These transactions typically involve a sole proprietorship or a corporation owned or acquired by a Roth IRA. Examples include transactions in which the Roth IRA corporation acquires property, such as accounts receivable, from the business for less than fair market value; contributions of property, including intangible property, by a person other than the Roth IRA, without a commensurate receipt of stock ownership; or any other arrangement between the Roth IRA corporation and the taxpayer, a related party or the business that has the effect of transferring value to the Roth IRA corporation comparable to a contribution to the Roth IRA.
Abusive Use of ESOP/S Corporation Ownership. Transactions that involve segregating the business profits of an ESOP-owned S corporation into a qualified subchapter S subsidiary so that rank-and-file employees do not benefit from participation in the ESOP. The ESOP is the owner of the business in form, but not in substance.
Abusive Section 412(i) Plans with Excessive Life Insurance. Certain arrangements in which an employer deducts contributions to a qualified pension plan for premiums on life insurance contracts that provide for death benefits exceeding the participant's death benefit, where under the terms of the plan, the balance of the death benefit proceeds revert to the plan as a return on investment. The IRS holds that a qualified pension plan cannot be an insurance contract plan if the plan holds life insurance contracts and annuity contracts for the benefit of a participant that provide for benefits at normal retirement age exceeding the participant's benefits at normal retirement age under the terms of the plan. Any employer contributions under a qualified defined benefit plan that are used to purchase life insurance coverage for a participant exceeding the participant's death benefit provided under the plan are not fully deductible when contributed but are carried over to be treated as contributions in future years and deductible in future years when other contributions to the plan that are taken into account for the taxable year are less than the maximum amount deductible for the year pursuant to the limits of §404.
Abusive Foreign Tax Credit Transactions. Transactions in which, pursuant to a prearranged plan, a domestic corporation purports to acquire stock in a foreign target corporation and then make an election under §338 (treating the purchase as a purchase of corporate assets rather than corporate stock) before selling all or substantially all of the target corporation's assets in a preplanned transaction that generates a taxable gain for foreign tax purposes (but not for U.S. tax purposes). The purpose of the transaction is to shift foreign tax credits, but not income, to the domestic corporation, which, in substance, is merely a conduit.
Abusive S Corporation Income Shifting Arrangements (SC2). Transactions in which S corporation shareholders attempt to transfer the incidence of taxation on S corporation income by purportedly donating S corporation nonvoting stock to an exempt organization while retaining the economic benefits associated with that stock.
Abusive Partnership Intercompany Financings. Transactions in which corporations claim inappropriate deductions for payments made through a partnership. Generally, in these transactions, a domestic corporation and a foreign person form a partnership in an attempt to convert interest payments not currently deductible into deductible payments.
Sale-in/Lease-out Arrangements. Transactions in which a taxpayer enters into a purported sale-leaseback with a tax-indifferent person in which substantially all of the tax-indifferent person’s payment obligations are economically defeased and the taxpayer’s risk of loss from a decline, and opportunity for profit from an increase, in the value of the leased property are limited.
Loss Importation Transactions. Transactions in which taxpayers attempt to exploit the entity classification rules in order to claim losses without taking into account the corresponding gains attributable to offsetting foreign currency positions. In such transactions a U.S. corporation acquires control of a foreign entity classified as a corporation for U.S. tax purposes. The foreign entity enters into offsetting foreign currency positions and closes out the positions that generate gain. The foreign entity then elects to be treated as a disregarded entity for U.S. tax purposes, effectively transferring the loss positions to the U.S. corporation.
Abusive Trust Arrangements Utilizing Cash Cash Value Life Insurance Policies Purportedly to Provide Welfare Benefits. Trust arrangements utilizing cash value life insurance policies and purporting to provide welfare benefits to active employees. These are promoted to closely held businesses as a way to provide cash and other property to the owners of the business on a tax-favored basis. These arrangements are sometimes called “single employer plans” or 419(e) plans. Promoters claim that the employers’ contributions to the trust are deductible with no corresponding inclusion in the owner’s income.
Distressed Asset Trust Transactions. Transactions in which assets with high basis and low value are transferred to a trust by a tax-indifferent party (e.g., a non-U.S. person who is not subject to U.S. tax or a tax-exempt organization). A U.S. taxpayer acquires an interest in the trust. The trust ultimately sells the assets and shifts the built-in loss to the U.S. taxpayer.
The IRS is particularly concerned with listed transactions and aggressively seeks them out. There are steep penalties for failure to adequately disclose one of these transactions. Taxpayers also should disclose a transaction that is substantially similar to a listed transaction.
For More Information
Contact your BKD advisor or:Lisa G. Workman
Director of Tax Services
417.831.7283
