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S Corp Banks Swing for the Fences, Settle for a Single

July 22, 2014

Authors

Jonathan Hightower

S Corp Banks Swing for the Fences, Settle for a Single

July 22, 2014

by: Jonathan Hightower

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 the capital conservation buffer requirements ever really be 1 or 2 rated and experiencing no adverse trends?
  • Does the FDIC believe Obamacare and the related net investment income tax will be repealed?  What about state income taxes?  The factor limiting the dividend request to 40% may ignore what is actually
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S-Corp Conference on May 21, 2013

April 22, 2013

Authors

Bryan Cave

S-Corp Conference on May 21, 2013

April 22, 2013

by: Bryan Cave

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 converting to an S-Corp, various strategies to help maximize shareholder returns through an S-Corp structure will be discussed. Don’t miss this one-of-a-kind conference designed specifically for community bankers! To register for this important conference, click here or contact Jodi@cbaofga.com.

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2013: A Window of Opportunity for S Corporation Asset Sales

February 19, 2013

Authors

Bryan Cave

2013: A Window of Opportunity for S Corporation Asset Sales

February 19, 2013

by: Bryan Cave

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 is the first ten years following the conversion to an S corporation.  The recognition period was shortened to seven years for sales occurring during a taxpayer’s 2009 and 2010 tax years and to five years for sales occurring during a taxpayer’s 2011 tax year.  The recently enacted American Taxpayer Relief

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Refund Opportunity for Sub S Banks

May 10, 2010

Authors

Frank Crisafi

Refund Opportunity for Sub S Banks

May 10, 2010

by: Frank Crisafi

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 provisions of Section 291 of the Internal Revenue Code of 1986, as amended, (the “Code”), to increase the amount of its taxable income by 20-percent of the amount of the bank’s interest expense that is considered attributable to certain qualified tax exempt-obligations that are owned by the sub-S bank, despite

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TARP CPP Documents Posted for Sub S Institutions

April 20, 2009

Authors

Robert Klingler

TARP CPP Documents Posted for Sub S Institutions

April 20, 2009

by: Robert Klingler

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 deferred for up to 20 consecutive quarterly periods.

Like the documents for public and private participants, the standard documents consist primarily of a letter agreement that incorporates the standard terms contained in a securities purchase agreement, as well as documents defining the investment instruments.

Summary of Tax Impact of Economic Stimulus Legislation

February 17, 2009

Authors

Frank Crisafi

Summary of Tax Impact of Economic Stimulus Legislation

February 17, 2009

by: Frank Crisafi

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 only smaller financial institutions will be able to take advantage of the expanded carryback period allowed by the Act.  The Act also repealed (with limited transitional protection) the relief provided in Notice 2008-83 issued by the Internal Revenue Service (“IRS”) in the fall of 2008 that exempted certain losses on

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Sub S Deadline for TARP 1.0 Capital on Friday

February 11, 2009

Authors

Robert Klingler

Sub S Deadline for TARP 1.0 Capital on Friday

February 11, 2009

by: Robert Klingler

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 applications in the hands of the banking regulators, there is likely to be significantly more clarity to the program before an institution has to make a final decision on whether to accept TARP Capital.  Filing  an application by the deadline preserves the institution’s flexibility to make a final decision, while

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Treasury Announces TARP Capital Terms for Subchapter S Institutions

January 14, 2009

Authors

Robert Klingler

Treasury Announces TARP Capital Terms for Subchapter S Institutions

January 14, 2009

by: Robert Klingler

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 C corporations under the TARP Capital program.  Bank holding companies can defer interest for up to 20 quarters.

Like it did for private and public companies, the Treasury plans for the Federal Reserve to issue a special rule to permit the vehicle be treated as Tier 1 Capital for bank

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Sub S TARP Capital Terms to be Announced Wednesday

January 13, 2009

Authors

Robert Klingler

Sub S TARP Capital Terms to be Announced Wednesday

January 13, 2009

by: Robert Klingler

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.

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