Tuesday, July 14, 2020
David Hasen (Florida) presents Debt And Taxes at Florida today as part of its Summer 2020 Virtual Faculty Workshop Series:
The federal income tax conceptualizes loans as an exchange of cash for promises to pay interest and to repay the cash by the term. This formulation is subtly wrong and has resulted in a weaker foundation for the existing rules, which are mostly correct, than they in fact enjoy. Conceptualizing loans as closely akin to rental arrangements places the existing rules on sounder conceptual footing. One exception, however, to the support for current law that the loan-as-rent arrangement provides is in the area of partnership tax. If loans are like cash rentals, the payment of interest is what supports both the borrower’s non-inclusion of loan proceeds and the borrower’s basis credit for them. Consistent with the loan-as-rent formulation, Treasury should provide for allocation of basis credit among partners for the partnership’s recourse debt based on who pays interest, not under the “catastrophe theory” of the current regulations.
This approach also would largely apply in the case of partnership nonrecourse debt, thereby unifying the treatment of the two types of debt and eliminating a discontinuity .