The Ninth Circuit Court of Appeals has held that S corporation shareholders had insufficient basis to deduct their claimed loss in the Messina Case. http://cdn.ca9.uscourts.gov/datastore/memoranda/2019/12/27/18-70186.pdf
An ongoing theme with tax court cases this year seems to focus on whether our client had ‘sufficient basis ‘ to deduct losses on their personal tax returns. This case was decided at year end of 2019. It points out significant requirements that advisors must consider before they can claim a loss.
The Key Element An S corporation’s indebtedness to another entity, even one wholly owned by the shareholder, does not increase the basis that the shareholder can claim in the S corporation.
The Court summary……”In sum, absent a basis in Club One that equals or exceeds their claimed deductions, Taxpayers fail to satisfy their “burden of clearly showing” that they are entitled to those deductions, Stahl v. United States, 626 F.3d 520, 522 (9th Cir. 2010) (internal citation omitted); see also 26 U.S.C. § 1366(d)(1) (limiting passthrough deductions that shareholder may claim to “shareholder’s basis in stock and debt”).
Accordingly, the Tax Court correctly concluded that the deficiencies assessed by the Commissioner were proper.”…
The Tax Law An S corporation shareholder takes into account, for the shareholder’s tax year in which the corporation’s tax year ends, his or her pro rata share of the corporation’s items of income, loss, deduction, or credit, as well as the corporation’s non-separately computed income or loss. (Code Sec. 1366(a)(1)) The character of the items passed through to the shareholders is preserved. (Code Sec. 1366(b))
The aggregate amount of losses and deductions considered by an S corporation shareholder is limited to the sum of
- The adjusted basis of the shareholder’s stock in the S corporation, and
- The shareholder’s adjusted basis of any “indebtedness of the S corporation to the shareholder.” (Code Sec. 1366(d)(1))
The Tax Code does not define “indebtedness of the S corporation to the shareholder.” The legislative history of the predecessor to Code Sec. 1366(d)(1)(B) states that losses are limited “to the adjusted basis of the shareholder’s investment in the corporation; that is, to the shareholder’s adjusted basis in corporation stock owned by the shareholder and the adjusted basis of any debt the corporation owes to the shareholder.”
A shareholder bears the burden of establishing his basis in an S corporation’s indebtedness to him (debt basis). (Broz, (2011) 137 TC 46)
The Case Facts Dana Messina and Kyle Kirkland each owned 40% of the outstanding stock in Club One, an S corporation.
In 2008, Club One acquired 100% of the stock of Casino, which elected to be a QSub of Club One. The acquisition was funded in part by a third-party loan later acquired by KMGI, an S corporation organized by Messina and Kirkland. Messina and Kirkland each transferred over $7 million to KMGI to provide it with the necessary funds. The transferred funds were initially listed in KMGI’s books as “shareholder loans.”
During 2012, Club One had an ordinary business loss and Messina and Kirkland each received a pass-through loss of $570,284.
On their 2012 tax returns Kirkland and Messina each deducted the pass-through loss from Club One, each claiming he had a $7 million basis in Club One by treating their “shareholder loans” to KMGI as their respective bases in Club One. The IRS disallowed their loss deductions.
The Taxpayer position Messina and Kirkland argued that KMGI should be disregarded because it was acting as their agent. Therefore, the loans they made to KMGI should be deemed to be Club One’s indebtedness to them, thus allowing them to count their adjusted bases in the loan when calculating the amount of Club One’s pass-through losses they could deduct for the 2012 tax year.
However, the IRS argued that KMGI’s separate corporate existence should be respected because KMGI wasn’t a conduit or agent of Messina and Kirkland, and that the loan they made to KMGI to acquire the third party debt owed by Club One should not be treated as indebtedness of Club One to Messina and Kirkland. The IRS asserted that basis in an S corporation can be only acquired either by contributing capital or directly lending funds to the company. Accordingly, the IRS reasoned, KMGI’s loans to Club One did not create basis in Club One for Messina and Kirkland. Accordingly, the IRS reasoned, KMGI’s loans to Club One did not create basis in Club One for Messina and Kirkland.
The Tax Court’s holding. The Tax Court agreed with the IRS’s argument that KMGI’s separate corporate existence should be respected because KMGI was not a conduit or agent of Messina and Kirkland and, therefore, could not be disregarded as such.
The Tax Court noted that KMGI operated in its own name and for its own account, there was no agreement showing that KMGI was Messina and Kirkland’s agent, and it was never held out as their agent in dealings with third parties.
The Tax Court also found that Messina and Kirkland were bound to the form of the transaction they chose and that their investment in KMGI increased their basis in KMGI’s stock, not their stock in Club One. Accordingly, they lacked the basis in Club One to deduct their claimed losses. See Tax Court Rejects S corp shareholders’ attempt to deduct loss based on QSub loan (11/09/2017).
The Court of Appeals Position. According to the Ninth Circuit, the Tax Court correctly concluded that Code Sec. 1366(d)(1) limits the debt basis that a shareholder may claim in an S corporation to “any indebtedness of the corporation to the shareholder.”
Therefore, “an S corporation’s indebtedness to another entity, even one wholly owned by the shareholder, does not increase the amount of pass-through deductions the shareholder can claim.”
The Ninth Circuit also held that the Tax Court correctly determined that Kirkland and Messina improperly included the debt that Club One owed KMGI when calculating their bases in Club One because the Club One debt ran to KMGI —not to Messina and Kirkland—and, therefore, it did not increase their bases in Club One.
Careful planning and a thorough yearend review of all the debt transactions is essential to prove shareholder’s adjusted basis of any “indebtedness of the S corporation to the shareholder.” (Code Sec. 1366(d)(1))
This case again signals that the IRS will continue to challenge taxpayers to document their basis calculations.
Be careful !!