August 9, 2010
Borden & Longhofer: The Liability-Offset Theory of PeracchiBradley T. Borden (Brooklyn) & Douglas L. Longhofer (Martin Pringle, Wichita, KS) have posted The Liability-Offset Theory of Peracchi, 64 Tax Law. ___ (2011), on SSRN. Here is the abstract:
Peracchi v. Commissioner is a lightning rod for commentators and the bane of students of corporate income tax. In short, the decision makes no sense because it grants the maker of a note a § 1012 basis in the note, violating a fundamental principle of income taxation. Nonetheless, the decision helped preserve a fundamental aspect of corporate taxation -- the tax-free formation of and contributions to controlled corporations. Because of its unorthodox application of the §1012 basis rules, the Peracchi decision is the subject of severe criticism. Unfortunately, commentators who criticize Peracchi generally fail to offer an alternative that recognizes general income tax principles, concepts of corporate income tax, and the economic realities of corporate formation and contributions to corporations.
This Article reviews the evolution of the corporate formation rules governing contributions of self-created notes. It discovers that Congress did not intend to impose taxable gain on shareholders who contribute self-created notes. It also reveals how the court in Peracchi reached the right conclusions (from an economic and corporate-tax-policy perspective) using the wrong analytical framework. After assessing current theories of Peracchi, the Article presents the liability-offset theory. Under this theory, the contributed self-created note would offset the liabilities assumed by the corporation in a manner similar that used in § 357(d). The Article illustrates that this theory adheres to general principles of income tax, honors concepts of corporate income tax, and recognizes the economic realities of corporate formation and contributions to corporations. The theory could therefore help resolve problems that stem from Peracchi and its progenitors.
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