Caveat emptor: stock acquisition CERT limit on NOL use.

• Author: Lehrer, John R.
• Position: Corporate equity reduction transaction, net operating losses

There are numerous provisions within the Code that limit a taxpayer's ability to use net operating losses (NOLs) (e.g., Secs. 172(b)(1)(E), 269,382 and 384), each of which was enacted to address a perceived abuse. For example, Sec. 382 prevents taxpayers from trafficking in loss corporations, and Sec. 384 restricts a corporation's ability to offset certain recognized built-in gains with a loss corporation's pre-acquisition NOLs.

Sec. 172(b)(1)(E) and (h) generally apply in leveraged buyout transactions in which substantial interest expense is created post-acquisition and NOLs result from the payment of such interest. Originally enacted in 1989, Sec. 172(b)(1)(E) and (h) limit the ability of a C corporation involved in a corporate equity reduction transaction (CERT) to use post-acquisition NOLs, arising from interest expense deductions in the year in which the CERT occurs (or in either of the two years succeeding that year), in any year prior to that year. Consequently, the CERT rules only limit carrying back NOLs, not carrying them forward. Taxpayers contemplating a transaction that would qualify as a CERT should give due consideration to the effect of the CERT rules on the transaction's economics as part of determining how to structure the transaction.

Mechanics of See. 172(b)(1)(E) and (h)

A CERT is defined under Sec. 172(h)(3) as either (1) a major stock acquisition or (2) an excess distribution. A "major stock acquisition" generally means the acquisition of stock pursuant to a plan by an acquiring corporation in a target representing 50% or more (by vote or value) of the target's stock. However, a "major stock acquisition" does not include a qualified stock purchase pursuant to which an election under Sec. 338 applies. Taxpayers should note that, under Sec. 172(h)(3)(D), all plans by any acquiring corporation, with respect to acquiring stock in a target, are considered to be one plan, and all acquisitions during any 24-month period are considered to be undertaken pursuant to one plan. Additionally, under Sec. 172(h)(4) (C), all members of an affiliated group that file a consolidated return are treated as one taxpayer for Sec. 172(b)(1)(E) purposes. Consequently, if one member of a consolidated group is involved in a CERT, the rules under Sec. 172(b) (1)(E) and (h) apply to all group members.

An "excess distribution" generally means the excess amount of the (1) aggregate distributions (including redemptions) made during a tax year by a...