IRS Taking Tougher Stance on Some Spinoffs

The agency has "significant concerns" that companies may be disguising taxable transactions as spinoffs to avoid paying taxes.
Katie Kuehner-HebertSeptember 16, 2015

The Internal Revenue Service will no longer rubber stamp corporate spinoffs of real estate and other physical assets, citing “significant concerns” that companies may be disguising dividends and other taxable transactions as spinoffs to avoid paying taxes.

These spinoffs “involve significant concerns,” the IRS said in new guidance issued Monday, adding it will largely stop giving pre-approval for such deals while it examines the issue more closely.

The increased scrutiny from the IRS could apply to pending deals including Darden Restaurant’s plan to spin off most of its restaurant properties, a move championed by activist investor Starboard Value, The Wall Street Journal reports..

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It also could give pause to companies including Macy’s and McDonald’s that are under shareholder pressure to make similar moves.

“The message is, proceed with caution,” tax attorney David Burton told the WSJ.

The WSJ noted. “The idea is that markets often don’t give full credit for land and buildings when they are embedded in an operating company and that companies can get a higher valuation by putting the assets into a separate structure like a real estate investment trust.”

Activist investors have championed such deals. Since the start of 2013, they have launched 21 campaigns aimed at pressing companies to separate their real estate, up from 11 in the previous six years combined, according to FactSet.

The deals are generally tax-free, subject to a few IRS rules, one of which is that the spun-off company must include an “active trade or business.” Simply collecting rent, as many REITs do, doesn’t qualify. Companies typically include a small business alongside the properties to meet the test.