In Non-public Letter Ruling 202406001 (Feb. 9, 2024), the taxpayer sought a willpower of the present tax penalties of a capital reorganization. An govt had beforehand fashioned a number of trusts and GRATs that owned shares of Inventory A and Inventory B in Firm. A restricted legal responsibility firm was fashioned for a sure enterprise goal (not described within the PLR). Firm and a disregarded entity wholly owned the LLC. Firm and its Board accepted a share repurchase program whereby executives and the trusts would contribute shares of Inventory A and B to Firm, which might then retire these shares and concern new shares of Inventory C to the LLC. As a part of the plan, the manager and the trusts deliberate to signal a contribution settlement underneath which they’d contribute a proportionate variety of shares again to Firm. Then, the LLC would use money derived from Inventory C for a enterprise goal.
A switch of property by one shareholder of an organization to an organization is a present to the opposite shareholders except it’s made within the strange course of enterprise, that means it’s bona fide, at arm’s size and free from donative intent. In that case, the switch is taken into account to be made for sufficient and full consideration in cash or cash’s price.
The IRS held that the settlement carried out transfers that met these necessities. First, the entire construction of the settlement was for a enterprise goal. Second, the manager and trusts acted in their very own self-interest, and the non-contributing shareholders weren’t associated to the manager or the trusts. So, the oblique transfers ensuing from the share contributions elevated the worth of the non-contributing shareholders however weren’t items as a result of they have been made within the strange course of enterprise.
As between the manager and the trusts, the transfers the manager made elevated the worth of the shares held by trusts, however the identical was true for the transfers made by the trusts to the manager. As a result of they contributed an equal proportion of their shares, the worth contributed by every will equal the worth every obtained. Due to this fact, these oblique transfers weren’t items both.
Individually, the IRS held that the alternate of shares didn’t intervene with a GRAT qualifying underneath IRC Part 2702. The query was whether or not the contribution of shares to Firm could be characterised as a switch to the manager annuitant, which might violate the GRAT. The GRAT accurately prohibits any distributions to the annuitant apart from the certified annuity curiosity. The contribution of the shares to Firm resulted in an oblique switch from the GRAT to the manager (because the annuitant) and an oblique switch to the non-contributing shareholders (because the remaindermen). The IRS held that these transfers have been actually a reinvestment of GRAT property, not an addition to the GRAT or a selected distribution to the annuitant govt.
