Tax Challenges Faced During Debt Restructurings
In the latest episode of the Weil Tax Insight Series, Tax Co-Chair Joe Pari and International Tax Head Devon Bodoh delve into the complex tax challenges that both domestic and international companies encounter during restructurings. The discussion highlights key issues, ranging from US anti-inversion rules to the implications of the corporate alternative minimum tax (CAMT) for distressed companies.
Cross-Border Restructuring Challenges
US bankruptcy and restructuring processes often have a truly global reach. Many foreign companies rely not only on US capital markets but also, due to their reliability and transparency, on US courts. This interaction often triggers complex tax implications, even for forms with limited US presence.
“The mere fact of being insolvent or in a Chapter 11 or similar proceeding will trigger these rules... and have really, really bad effects in that a foreign company after the debt restructuring will be treated as a US [company] for US tax purposes.”
One prominent issue is the US anti-inversion rules, designed to prevent US companies from relocating abroad to avoid taxes. These rules can have surprising applications in debt workouts and restructuring, recharacterising debt as equity or even treating foreign entities as US companies for tax purposes Such outcomes can result in significant tax liabilities, including double taxation, and require meticulous planning to mitigate.
Another recurring challenge involves withholding taxes on accrued but unpaid interest during restructurings. Additionally, indirect taxes, such as the German real estate transfer tax or various Latin American levies, often erode creditor recoveries if not managed carefully.
“Structures need to work both now and into the future. Structures that will be Pillar 2-complaint and stand the test of time will be highly bespoke and take time to implement.”
The evolving international corporate tax landscape is also being shaped by the OECD’s Pillar 2 framework, which establishes a global minimum tax. Companies undergoing restructuring must ensure compliance with these new rules while navigating uncertainties in US policy under changing administrations. The USA, while not adopting Pillar 2, has been broadly supportive of a global movement for minimum tax; it remains unclear whether the incoming administration will be similarly encouraging.
Domestic Tax Issues in Restructuring
Beginning after 2022, the corporate alternative minimum tax (CAMT) imposes a 15% minimum rate on certain corporations based on their adjusted financial statement income (AFSI). Troubled companies with net operating losses (NOLs) often find CAMT especially challenging, as it limits the use of financial statement NOLs to offset only 80% of AFSI.
“The CAMT rules in the context of distressed corporations are extremely complex and sometimes produce some surprising results.”
Another issue worth considering is the treatment of cancellation of indebtedness (COD) income, which arises when companies settle debts for less than their adjusted issue price. While COD income can be excluded from taxable income in bankruptcy or insolvency cases, the CAMT rules introduce added complexity. Proposed regulations issued in September 2024 attempt to address such issues but remain intricate, requiring careful consideration of attribute reductions, book income adjustments and fresh start accounting rules.
Practical Implications and Future Considerations
Restructurings, whether domestic or international, present a labyrinth of tax challenges that demand proactive and nuanced strategies. As Devon Bodoh and Joe Pari stress, the importance of involving tax professionals early in the restructuring process is clear. Effective planning can help navigate issues like double taxation, withholding taxes and CAMT compliance, ensuring that restructurings are both tax-efficient and compliant with evolving regulations.
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