On September 22, 2014, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS”) issued Notice 2014-52, “Rules Regarding Inversions and Related Transactions” in the wake of recent inversions.
In previous articles on Hopscotch loans and de-control of CFCs, we covered certain aspects of the new regulations to be issued. This article will examine some of the changes that various corporations have recently made to pending inversions as a consequence of the new IRS Notice 2014-52; the article is not intended to convey tax or legal advice. Please contact Sherayzen Law Office, PLLC for questions about your tax and legal needs.
IRS Notice 2014-52 Intended to Address Tax Avoidance
As stated in Notice 2014-52, Treasury and the IRS “understand that certain inversion transactions are motivated in substantial part by the ability to engage in certain tax avoidance transactions after the inversion that would not be possible in the absence of the inversion.” Such inversions were viewed to be specifically inconsistent with the purposes of Internal Revenue Code (“IRC”) Section 7874 and 367, and accordingly, Treasury and the IRS intend to issue new regulations under IRC Sections 304(b)(5)(B), 367, 956(e), 7701(l), and 7874. After Notice 2014-52 was issued, Treasury Secretary Jacob Lew was quoted as saying that the new regulations would “significantly diminish the ability of inverted companies to escape U.S. taxation.”
Treasury and the IRS are also “considering guidance to address strategies that avoid U.S. tax on U.S. operations by shifting or “stripping” U.S.-source earnings to lower-tax jurisdictions, including through intercompany debt.” Notice 2014-52 is currently in the comment period.
At Least One Inversion Deal Cancelled
On October 3, 2014, the Raleigh, North Carolina-based Salix Pharmaceuticals Ltd, announced that it would be cancelling a deal to merge with an Irish subsidiary of the Italian company, Cosmo Pharmaceuticals SpA, specifically referencing Notice 2014-52 as creating “more uncertainty regarding the potential benefits we expected to achieve.”
Notice 2014-52 appears to have sufficiently created its intended result in this case. The CEO for Cosmo, Alessandro Della Cha, was quoted in an article as saying, “The (U.S.) administration has taken steps to make inversions more difficult and to make it harder to extract the benefits.”
Scuttling the deal was particularly costly for Salix as it also had to pay Cosmo a break-up fee of $25 million; however, according to various reports, the company has also been sought for a potential deal by Allergan Inc. as well as a Actavis Plc.
Medtronic Adjusts Deal in Response to Notice 2014-52
Unlike the response that Salix took to Notice 2014-52, Minnesota-based Medtronic Inc. recently announced that it would still close the proposed deal to acquire Ireland-based Covidien Plc by the end of this year, or early next year.
However, instead of the originally-proposed deal to use cash from its foreign subsidiaries to purchase the company, it will borrow $16 billion to close the approximately $43 billion transaction. As with Salix, a spokesman for Medtronic cited Notice 2014-52 as the reason for the change in the terms of the transaction.
As tax experts study proposed deals under the new IRS rules, it is very likely that more companies planning inversions will adjust their deals in a similar manner.
Contact Sherayzen Law Office for Professional Help with Complex International Tax Planning
Notice 2014-52 is just the latest in the avalanche of recent IRS initiatives in international tax enforcement. The recent explosion in the number of international tax regulations has greatly complicated the ability of US persons conduct business overseas. This is why you are advised contact Mr. Eugene Sherayzen an experienced international tax attorney at Sherayzen Law Office, PLLC for professional legal and tax guidance in this increasingly complex area of law.