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Proposed Loss of Interest Deduction Would Boost Cost of PE Deals

Authors: Steven D. Bortnick and Bruce K. Fenton

1/13/2017
Proposed Loss of Interest Deduction Would Boost Cost of PE Deals

Where asset acquisitions or deemed asset acquisitions are not available, the loss of the interest deduction would likely result in an increased focus on pure equity-funded transactions.

This article was published on January 13, 2017 on the Middle Market Growth website, published by the Association of Corporate Growth (ACG). It is reprinted here with permission.

Republican lawmakers have introduced proposals that may serve as the basis for tax reform in 2017. Private equity transactions could cost significantly more if legislation ultimately is passed that would eliminate the deduction for net interest expense, as is the case in “A Better Way,” a blueprint for tax reform introduced by House Speaker Paul Ryan.

Private Equity Transactions Generally

The typical private equity acquisition involves the acquisition of stock or assets of a target corporation, partnership or limited liability company using both cash called by the fund from its limited partners and third-party leverage. Under current law, subject to various limitations (e.g., AHYDO, earnings stripping, case law distinguishing debt from equity and newly enacted regulations that deem debt as equity in certain cases), the target company or special purpose vehicle formed to effect the acquisition may deduct the interest expense as the interest accrues on the debt.

Elimination of Interest Expense and Immediate Expensing

The “A Better Way” blueprint would eliminate the deduction for interest expense, except to the extent of interest income. It also would permit businesses to immediately write off (i.e., depreciate for tax purposes) the cost of assets purchased by the taxpayer and used in a business, rather than depreciating or amortizing those assets, as under current law. The elimination of the interest deduction would help offset the loss of tax revenue from permitting immediate depreciation, and is designed to remove the tax preference that debt financing clearly has over equity financing.

Although immediate expensing of capital assets would be a huge tax benefit, in a private equity transaction where indebtedness is incurred to help finance the purchase of stock (as opposed to assets or partnership interests), immediate expensing may not overcome the additional cost related to the loss of the interest deduction because the cost of stock can never be depreciated.

Additional Focus on Asset and Deemed Asset Deals

Under both current and proposed tax law, there is a significant tax benefit to effecting a transaction as an asset deal, namely, the ability to increase the basis of depreciable/amortizable assets (including goodwill) to the fair market value, represented by the purchase price. This benefit would be available in both a straight asset sale or upon making an election to treat a stock purchase as an asset purchase. Although typically beneficial for the buyer, there could be an offsetting cost to the seller in the form of a corporate-level tax on the gain recognized in the transaction.

This additional tax cost generally does not apply in the case of the acquisition of assets from an S corporation or a partnership (typically including an LLC), or the acquisition of an S corporation or a subsidiary out of a consolidated group, although there may be additional state and local tax costs, and the character of some of the income may change in the case of an S corporation acquisition. Additionally, if the target has net-operating-loss carryovers, the corporate-level taxable income may be reduced by the NOLs. Moreover, a special election is available to partnerships that has a similar effect without any entity-level tax.

Immediate deductibility of capital costs, coupled with the loss of an interest deduction would significantly favor asset deals or stock deals with an election.

Additional Focus on Equity Financing

Where asset acquisitions or deemed asset acquisitions are not available, the loss of the interest deduction would likely result in an increased focus on pure equity-funded transactions, although the (non-tax) financial engineering benefits of using leverage would still be a factor for funds to consider.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship. Internal Revenue Service rules require that we advise you that the tax advice, if any, contained in this publication was not intended or written to be used by you, and cannot be used by you, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.