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Capital Structure Outline

Law Outlines > Corporate Tax (Duke Zelenak) Outlines

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Capital Structure Introduction I.

II. III.

IV. Equity: issuing stock in exchange for contributions of money a. Double tax: dividends includible in SH's income and not deductible by the corporation b. Redemption of shares (buys back) from a SH, entire amount taxed as a dividend if the SH or related persons continue to own stock in the corporation Debt: borrowing money: bonds, notes, etc. a. No double tax: interest paid on corporate debt is includible in recipient's income, but is deductible by the corporation b. Repayment of debt is tax-free return of capital, gain treated as capital gain Example: X earns 100, pays out to A a. As interest, deductible by the corporation, 0 corporate tax i. 100 income to A ii. A gets 60.4 after 39.4% income tax b. As dividend, corporations pays 35% corporate tax i. 100-100*35=65 dividends after tax ii. 20% dividend tax on the 65 -65*20%= 52 Therefore, you prefer debt to equity.

Debt vs. Equity V.

VI. Common law standards a. To prevent tax avoidance through the use of excessive debt, IRS may reclassify a purported debt obligation as equity. b. Common stock (risky, equity) ? preferred stock (in the middle, treated as equity) ? debt (safe) i. Preferred stock is preferred to common stock, with respect to liquidation proceeds and dividends ii. Preferred stock is a stock, you get preference on dividends over common stock, if the corporation decides to pay dividends, up to the preference limit. iii. The excess to the preference limit goes to common stock iv. If the corporation liquidates, preferred stock gets payment second (after debt), up to the preference limit v. Payment treated as dividend, not deductible Section 385 a. Section 385(b) factors i. Form

1. if you want it to be qualified by debt, it needs to have debt characteristics

2. Debt instrument should have an unconditional promise to pay; a specific term; remedies for a default; stated, reasonable rate of interest, payable in all events

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