On July 21, 2014, the FDIC issued a Financial Institutions Letter (FIL) on the impact of the capital conservation buffer restrictions under Basel III on S Corporation banks.  The guidance essentially states that, even though Basel III restricts an S Corporation bank’s ability to pay tax distributions if it does not maintain the full capital conservation buffer, the FDIC will generally approve requests to pay tax distributions if no significant safety and soundness are present.  The succinct guidance probably raises more questions than answers.  Among those questions are the following.

• Would a bank that does not meet
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NAVIGATE THE NEW WORLD OF BANKING

Strategies to help maximize shareholder returns through an S-Corp structure.

Please make plans now to join your peers for a one-day conference focused on why a Subchapter S strategy may be perfect for your bank in our new economic and regulatory environment. Spend the day with industry experts discussing how Subchapter S status may help your institution navigate the new world of banking with deleveraged balance sheets and slower growth models. Whether your bank is an S-Corp or considering

In general, when an S corporation sells its assets, the gain on sale flows through to, and is reportable by, the shareholders and is not subject to a corporate level tax.  In the case of an S corporation that previously was a C corporation, however, such S corporation is subject to a corporate level tax on its “built-in gain” if the asset sale occurs during the “recognition period.”

Generally, an asset’s built-in gain is the amount of gain that would be recognized if the corporation sold such asset immediately before it converted to an S corporation and the recognition period

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7th Circuit Reverses Tax Court in Vainisi –

Subchapter S and Q Sub Banks Following Notice 97-5 with Respect to Expenses Relating to Tax Exempt Income Should Consider Filing Refund Claims

On March 17, 2010, the U.S. Court of Appeals, Seventh Circuit, reversed the U.S. Tax Court’s decision in Vainisi v. Commissioner, 132 T.C. No. 1 (2009), which held that a sub-S corporation that is a bank (or in this case a bank holding company that owned a bank that had made a qualified S subsidiary or “Q-sub” election) is required, under the

On April 13, 2009, the Treasury Department published the standard agreements for Subchapter S institutions to participate in the TARP Capital Purchase Program.  As previously discussed, the TARP Capital Purchase Program for Sub S institutions consists of a subordinated debt instrument paying interest at a rate of 7.7% per annum until the fifth anniversary, and then at 13.8% per annum, plus an immediately exercised warrant for additional subordinated debt equal to 5% of the investment, paying interest at a rate of 13.8% per annum.  The investment has a 30 year term, and, like trust preferred securities, interest can be

The American Recovery and Reinvestment Act of 2009 (the “Act”) contained a number of tax provisions that are likely to be of particular interest to and will directly impact most, if not all, of our bank and other financial institution clients.  One of the tax provisions, the provision increasing the period that a net operating loss (“NOL”) can be carried back from two (2) to up to five (5) years, saw the addition of a provision that will substantially limit the number of taxpayers eligible to take advantage of the expanded carryback period.  The new limitation makes it likely that

As a reminder, the deadline for Subchapter S institutions to apply for the TARP Capital Purchase Program is Friday, February 13, 2009.  (Review the terms for Subchapter S institutions.)

The application form is unchanged from the initial application, and is available from the Treasury or as a Word document.  The Treasury has also confirmed that Subchapter S institutions that applied prior to the announcement of the terms for Subchapter S institutions do not need to re-apply.

While there is significant uncertainty over the application of TARP 2.0 rules to the TARP Capital Purchase program, with over 2,000

On January 14, 2009, the Treasury published a Term Sheet for S Corporations and a Frequently Asked Questions for S Corporations.  In order to comply with the limitations on stock ownership for entities that elected to be taxed as S Corporations, the Treasury is planning to use subordinated debt as the investment vehicle.

The subordinated debt will pay interest at a rate of 7.7% per annum until the fifth anniversary, and then pay at a rate of 13.8% per annum.  This equates to after-tax effective rates of 5% and 9%, the same rates applied to public and private

On January 13, 2009, Treasury Assistant Secretary Kashkari announced that the Treasury has completed a term sheet for Subchapter S corporations to participate in the TARP Capital Purchase Program. He stated that the term sheet for Subchapter S corporations will be posted on the Treasury website on Wednesday, January 14, 2009. The application period is expected to open at that time and remain open for 30 days.