May 14, 2020

Income Taxation

Income Taxation

Wraparound Lease Financing of Personal Property
      Frederick R.H. Witherby, Jr., Stephen T. Whelan, James R. Shorter, Jr., Peter V. Fazio, Jr., Peter B. Trumbull, and David E. Sturgess, 41(3): 747–72 (May 1986)
This Article concludes that properly documented and economically justified wraparound lease financing should be upheld under federal income tax law and state law. Federal income tax analysis, including the installment-sale provisions of the Internal Revenue Code of 1954, is emphasized, as are the requirement of a bona fide profit motive and the existence of a depreciable present interest in leased property. The authors suggest that aggressively applied, indirectly related provisions of the federal income tax law are partially responsible for the negative image of wraparound lease financing.

An Introduction to Federal Income Tax Issues Relating to the Issuance of High-Yield Securities
      Kenneth L. Hooker, 53(3): 799–812 (May 1998)
This Article describes the basic federal income tax considerations relevant to the issuance of high-yield securities in the form of debt and preferred stock. In the case of debt securities, these issues include whether its classification as debt will be respected for federal income tax purposes, the application of the original issue discount rules, various potential limitations on the deductibility of interest, special considerations with respect to convertible debt, the taxation of exchange offers and defeasances, state tax planning concerns, and special concerns in the case of foreign subsidiaries. In the case of preferred stock, the issues include the application of the preferred stock discount rules, potential deconsolidation issues, and the impact of conversion and exchange features.

     Jeffrey L. Kwall and Stuart Duhl, 63(4): 1153–1186 (August 2008)
Backdating is a much misunderstood and largely unexplored subject. It involves a wide range of conduct, some of which is an integral part of everyday law practice. To the layperson, backdating connotes wrongdoing. The propriety of backdating, however, depends upon its purpose and effect. Every lawyer should be capable of distinguishing legitimate backdating from improper backdating. Unfortunately, the dividing line is often far from clear. Little guidance exists on backdating, notwithstanding its pervasiveness, the complexity of determining its propriety, and the serious consequences of a misjudgment. An in-depth examination of the day-to-day backdating issues that most business lawyers face cannot be found in the literature. This Article begins to fill that void.

This Article explains the different meanings of backdating, explores the reasons why it is difficult to distinguish legitimate backdating from improper backdating, examines the impact of disclosure on the propriety of backdating, and develops an analytical approach to assist business lawyers in wrestling with the difficult situations most will confront in their daily practices. By illuminating the subject, it is hoped that this Article will begin a much-needed dialogue about backdating.